Your right to download and/or access and use Thomson Reuters ProView Software (“Software”) in order to access digital content in electronic “book” format accessed therein (“eBook Content”) is subject to the terms and conditions of the agreement below (“Agreement”), which provides a legal document between you (the “Subscriber”) and the indicated corporate representative of Thomson Reuters Professional (“TR”) noted in advance of these terms. By downloading and/or accessing and using the Software you assert that you agree to these terms. If you do not agree to these terms, do not download and/or access and use the Software.
“TR” in this Agreement shall refer to Thomson Reuters New Zealand Limited.
1.1. Grant. TR grants Subscriber a non-exclusive, non-transferable, limited license, as updated or modified from time to time, to download and/or access the Thomson Reuters ProView Software (“Software”) in order to access and use the digital content in electronic book format accessed therein (“eBook Content”) that Subscriber has licensed access under separate agreements (“Subscriber’s Library”).
1.2. Software Restrictions. Subscriber may not distribute, transfer, sell, resell, rent, lease, lend, publish, transmit, retransmit, disseminate, broadcast, circulate, or sub-license or otherwise assign any rights to the Software in whole or in part, without written authorisation from TR. Subscriber may not reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Software. Subscriber may not circumvent or bypass, modify, defeat, or tamper with any of the functions or protections of the Software and/or eBook Content in Subscriber’s Library. Subscriber is solely responsible for maintaining the security of Software passwords. Subscriber may not reproduce all or any portion of the Software (except as expressly permitted in this Agreement) or any accompanying user documentation (“Documentation”), or modify, translate or otherwise create derivative works of the Software.
Subscriber agrees to notify its employees and agents who may have access to the Software of the restrictions contained in this Agreement and to ensure their compliance with these restrictions. Additional terms may apply to some of the third party software available as part of the Software, and will govern usage of that third party software in the event of a conflict with this Agreement.
1.3 Access to eBook Content in Subscriber’s Library and Other TR Products and Services. eBook Content made available to Subscriber for access via the Software may be licensed subject to additional terms different from those set forth in this License Agreement. Where there is a conflict between this License Agreement and such additional terms, the additional terms will take precedence in relation to your use of the eBook Content. The additional terms applicable to the eBook Content made available through TR can be viewed at http://www.thomsonreuters.co.nz/terms/ProView-ebook-content-licence.aspx. eBook Content within Subscriber’s Library may not be distributed, transferred, sold, resold, rented, leased, lent, published, transmitted, retransmitted, disseminated, broadcast, circulated, or sublicensed or otherwise assigned without written authorisation from TR. Subscriber may also be able to access and use various TR products and services through links made available by the Software. All access to and use of such products and services by means of the Software, including any charges for such access and use, will be governed by the terms of the applicable user agreement for those products and services.
1.4. Use of Software. Access via 3G or better connectivity is necessary to update the Software and to access Subscriber’s Library and use various features such as notes and annotations.
2.1 TR and Subscriber shall each comply with the provisions of the Privacy Act 1993 (NZ) (“the Privacy Act”) applicable to such party’s performance of its obligations under this Agreement.
2.2 In particular, but without limitation, Subscriber warrants that Subscriber has obtained all necessary consents or authorisation required to be able to disclose personal information about an individual (“Personal Information”) to TR to enable TR to fulfil its obligations under this Agreement and that use and disclosure of such Personal Information by TR in accordance with the terms of this Agreement will not result in a breach of the Privacy Act by the Subscriber or TR.
2.3 Subscriber expressly acknowledges and consents to:
(a) TR disclosing and transferring such Personal Information to Affiliates and service providers who may, in certain instances, be located outside of New Zealand (including in the United States) to the extent required to provide access to, maintain and service the Software as part of TR’s information technology arrangements; and
(b) such third party service providers storing and processing of such Personal Information on servers located outside of New Zealand (including, but not limited to servers located in the United States).
2.4 Subscriber is responsible for ensuring that if a third party is required to disclose to TR personal information for the purposes of this Agreement on behalf of the Subscriber, or at the Subscriber’s request, such disclosure by the third party complies with the Privacy Act.
3. Intellectual Property. Subscriber acknowledges and agrees that all right, title and interest in and to the Software, supporting documentation, and any other related materials, including but not limited to the Subscriber’s Library and contents thereof, shall remain, vested solely in TR and other intellectual property owners, if any, and Subscriber shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Intellectual property as defined herein includes, but is not limited to patent, copyright, trademark, trade secret and trade dress. Except as expressly permitted herein, Subscriber covenants and agrees that it shall make no use of the Software, supporting documentation, Subscriber’s Library or contents thereof, or any other related materials without TR’s prior written consent.
4. Confidential Information. The parties agree and acknowledge that any documents, and contents thereof related to the terms of this Agreement or the relationship between the parties to this Agreement, which are designated as confidential and provided to the other party during the term of this Agreement (“Confidential Information”) are valuable assets to the disclosing party. The parties will each take reasonable steps to ensure that the Confidential Information is not used or disclosed except as expressly permitted by this Agreement. Confidential Information shall not include information that consists of ideas, concepts, know-how or techniques relating to the enhancement, customisation, installation or implementation of the Software.
5. DISCLAIMER OF WARRANTIES, CONDITIONS, REMEDIES AND LIMITATION OF LIABILITY.
5.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND OTHER THAN AS REQUIRED BY LAW, THE SOFTWARE AND/OR EBOOK CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. NEITHER TR NOR ITS AFFILIATES MAKE ANY WARRANTY, AND THERE IS NO CONDITION, THAT ACCESS TO THE SOFTWARE AND/OR EBOOK CONTENT WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR FREE. SUBSCRIBER ACKNOWLEDGES THAT PROVISION OF THE SOFTWARE ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA. The performance of the Software varies with various manufacturers’ equipment with which it is used. Certain hardware or software used by Subscriber may not be capable of supporting the Software. TR does not warrant the level of performance of the Software or that earlier versions superseded by new versions (whether or not distributed to Subscriber) will continue to be capable of access to and use with TR Services or the eBook Content.
5.2 Limitation of Liability. In no event, other than as outlined in paragraph 6, shall TR’s, or its officers’, employees’, directors’, parent’s, affiliates’ or subsidiaries’, liability to Subscriber arising out of or related to this Agreement, or the licensing, delivery, use or performance of the Software, eBook Content, or services provided under this Agreement or any breach of this Agreement, whether based on an action or claim in contract or tort, including negligence, strict liability or warranty, except liability for bodily injury, exceed the subscription charges paid by Subscriber, for the Software or individual Subscriber’s Library eBook Content involved in the dispute, during the twelve (12) month period immediately preceding the event giving rise to such claim. In no event will TR and/or its affiliates be liable to Subscriber for any lost profits or other damages, including indirect, incidental, exemplary, punitive, special or consequential damages arising out of this Agreement or the use of the Software or Subscriber’s Library licensed hereunder, even if TR and/or its affiliates have been advised of the possibility of such damages.
The Fair Trading Act 1986 (NZ) (“FTA”), Consumer Guarantees Act 1993 (NZ) (“CGA”) and similar laws may confer rights and remedies to Subscriber in relation to the eBook Content which cannot be excluded, restricted or modified. For the avoidance of doubt, nothing in this Agreement excludes, restricts or modifies such non-excludable rights and all preceding provisions are to be read subject to the provisions of the FTA and CGA. To the extent that the CGA applies, and if the eBook Content is being purchased for a business purpose, then the Subscriber acknowledges that the CGA does not apply.
5.2.1 Failures Not Caused by TR. TR will not be responsible to the extent that the Software fails to perform as warranted due to one or more of the following: (1) the malfunction of software not provided by TR, (2) the malfunction of hardware, (3) Subscriber’s negligence or fault, (4) Subscriber’s failure to follow the instructions set forth in the Documentation, (5) material changes in the operating environment not authorised by TR, (6) modifications to or changes in the Software not made or suggested by TR (7) Subscriber’s failure to implement and maintain a proper and adequate backup and recovery system for the TR database or user files or (8) inadequate wireless connectivity. If TR discovers that a failure is caused by one of the above, TR reserves the right to charge Subscriber for its work in investigating such failure. At Subscriber’s request and at a fee to be agreed upon, TR will thereafter assist Subscriber in resolving such failure. It is Subscriber’s responsibility to develop and implement a proper and adequate backup and recovery system.
5.3 Remedy. The remedies in Paragraphs 6 and 7 are Subscriber’s exclusive remedies and are in lieu of all other legal or equitable remedies and all liabilities or obligations on the part of TR for damages (except for bodily injury and except to the extent that any rights or remedies cannot be excluded under the FTA and CGA) arising out of, relating to, or in connection with this Agreement, including, but not limited to, the licensing, delivery, installation, use or performance of the Software or the integration of the Software with other software or hardware or access to and use of Subscriber’s Library, unless other agreements related to Subscriber Library eBook Content supersede these terms.
6.1 Infringement Claims. At its sole expense and subject to the limitations set out in Paragraph 5.2 of this Agreement, TR shall defend, indemnify and hold Subscriber harmless from copyright, trademark, trade secret and patent infringement claims in New Zealand based upon the Software in the form delivered by TR, including paying any judgment, attorney fees, costs and expenses associated with such claim.
6.2 Settlement. Without limiting its obligations under Paragraph 7.1, in the event a claim of infringement or misappropriation is made against TR or Subscriber with respect to the Software, TR, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Software use commercially reasonable efforts to:
(i) substitute fully equivalent non-infringing software; or
(ii) modify the Software so that it no longer infringes but remains functionally equivalent.
6.3 TR’s obligation to indemnify Subscriber pursuant to this Paragraph 6 is contingent upon TR being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. Subscriber shall have the right to participate at its own cost in the defence of any such claim or action through legal counsel of its choosing. Subscriber shall not settle any such claim or action without TR’s prior written consent.
6.4 This Paragraph 6 contains TR’s entire indemnification obligation and the exclusive remedies of Subscriber with regard to any claimed infringement arising out of or based upon the Software.
7. Term and Termination.
7.1 Your rights under this Agreement begin upon your download and/or access of the Software and continue until the Agreement is superseded, the Software is discontinued or otherwise no longer available, or the Agreement is terminated for breach. TR may terminate this Agreement immediately upon giving notice of termination to Subscriber if Subscriber commits a material breach of any obligation to TR under any other agreement between the parties. Subscriber may terminate this Agreement immediately upon uninstalling and deleting the Software from Subscriber’s devices and discontinuing its use. Either party may terminate this Agreement immediately upon giving written notice of termination to the other party if the other party commits a material breach of this Agreement and such breach is not cured within thirty (30) days of notice of such breach to the breaching party by the non-breaching party. Notice may be provided electronically.
7.2 Upon the termination of this Agreement, Subscriber’s license and right to receive updates or maintenance for the Software or any part thereof, including but not limited to the Subscriber’s Library, shall end immediately.
8. General Provisions.
8.1 Effect of Agreement. This Agreement embodies the entire understanding between the parties with respect to the Software, and eBook Content not covered by separate agreements, and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. This Agreement may be amended at anytime by TR giving notice of the amended version of this Agreement on TR’s company blog which can be viewed at http://insider.thomsonreuters.co.nz. Subscriber’s continued access of the eBook Content after the date we notify Subscriber of a change is deemed acceptance of those changes. Subscriber’s sole remedy if Subscriber does not agree to amendments is to discontinue use of the Software.
8.2 Force Majeure. TR shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labour dispute, inability to obtain necessary supplies and the like.
8.3 Notices. Except as otherwise provided herein, all notices must be in writing to Thomson Reuters NZ at PO Box 43, Wellington 6140 New Zealand: Attention Customer Care Manager and to Subscriber at the email address provided by Subscriber. Subscriber agrees to receive electronic communications from TR related to Subscriber’s use of Software, Subscriber’s Library or related matters. Subscriber agrees that this electronic communication will satisfy any legal requirement that notices be provided in writing.
8.4 Governing Law and Assignment. This Agreement will be governed by and construed under the law of New Zealand without regard to conflicts of law provisions. The parties agree that the courts presiding in New Zealand will have exclusive jurisdiction over any claim arising out of this Agreement and each party consents to the exclusive jurisdiction of such courts. Neither this Agreement nor any part or portion may be assigned, sub-licensed or otherwise transferred by Subscriber without TR’s prior written consent. Any attempt to assign or transfer in violation of this Paragraph shall be null and void. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
8.5 Limitation of Claims. Except for claims relating to the payment of charges or improper use of the Software, or Subscriber’s Library, no claim, regardless of form, which in any way arises out of this Agreement, may be brought more than one (1) year after the basis for the claim becomes known to the party desiring to assert it.
8.6 Export Laws. The Software and its related Documentation may not be exported or re-exported in violation of the U.S. Foreign Corrupt Practices Act and its implementing regulations, the U.S. Export Administration Act and its implementing regulations or any other applicable laws, rules and regulations. Subscriber shall bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the United States of the Software to any location so as to be in compliance with all applicable laws, rules and regulations.
8.7 Audit. TR reserves the right to audit Subscriber’s use of the Software with respect to the obligations of this Agreement.
8.8 Survival. Paragraphs 3 through 10 shall survive any termination of this Agreement.
9. Maintenance Terms.
9.1 Maintenance Services. Software may be periodically updated through Enhancements or Updates at TR’s sole option. It may be necessary for Subscriber to utilise specific versions of Enhancements or Updates for operation of the Software.
Maintenance Services consist of the following:
9.1.1 Enhancements. “Enhancement” means an improvement to Software that alters its basic functionality or performance, or adds new functionality, designated as X.x.x and x.X.x
9.1.2 Updates. “Updates” means Software releases, designated as x.x.X, that either remedy deficiencies in the Software or improve Software operating performance without altering or adding to the basic Software functionality.
9.1.3 Support Services. TR will use reasonable efforts to provide support services for purposes of handling Subscriber’s questions relating to the operation of the Software (“Support Services”). Contact information for requesting Support Services can be found at http://thomsonreuters.com/proview/en/support/ or within the ‘Contact Us’ section within the Software and may be updated from time to time as deemed by TR.
9.2 TR Obligations.
9.2.1 TR’s obligations related to the Software hereunder will extend only to (a) the most current Update and the immediately preceding Update of the Software provided to Subscriber by TR and (b) Software that has not been modified or altered in any way by anyone other than TR or at TR’s direction. This obligation will continue as long as the product is continued to be offered. If it is determined Support Services were provided as a result of Subscriber’s misuse of the Software as outlined within this Agreement, TR may charge Subscriber for Support Services rendered.
10. Ideas and Concepts. Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, materials and the like that Subscriber provides to TR regarding the Software shall become the exclusive property of TR and may be used for its business purposes in its sole discretion without any payment, accounting, remuneration or attribution to Subscriber.
11. Third Party Software Components. Software contains third party licensed software components. Disclosures related to these components can be found within the Software.
12. Assignment. Subscriber may not assign Subscriber’s rights or obligations under this Agreement. TR may assign its rights and obligations under this Agreement at any time.
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