1.1. You must accept (and execute) this Subscription Agreement before accessing and using the Subscription under this Agreement.
1.2. By executing this Subscription Agreement you acknowledge that:
(a) you have read and accept the details contained in the Special Terms;
(b) you have read and understand this Subscription Agreement;
(c) you have the authority to act on behalf of any entity for whom you are using the Subscription.
1.3. You are deemed to have agreed to this Subscription Agreement on behalf of any entity for whom you use the Subscription.
1.4. If you do not agree with all of the terms and conditions of this Subscription Agreement, do not access or use the Subscription.
2.1. This Subscription Agreement relates to the Subscription. Subject to you complying with this Subscription Agreement:
(a) Shift72 grants to you and you accept from Shift72, a non-exclusive, non-transferable, non-sublicensable and non-assignable right, to access and use the Subscription and the Platform for the Purpose; and
(b) you subscribe for the Subscription.
3. Registered Users
3.1. You are responsible for keeping all log-on information, including email addresses and passwords, secret and secure. Without limiting the foregoing, you agree:
(a) to ensure that Registered Users do not to permit any other person to use their user name or log-on;
(b) not to disclose nor permit any Registered User, log-on information or any other information that may allow any person (other than a Registered User) to gain access and use of the Subscription; and
(c) to immediately inform Shift72 of any known or suspected unauthorised access and use of the Subscription or the Platform.
4. Proprietary Rights
4.1. The Subscription, the Platform and the underlying Software used in the Website is protected by copyright and other interests and they are proprietary and confidential to Shift72 (or its third party licensors and/or suppliers). All rights, title and interest in and to any Proprietary Rights in the Subscription, the Platform, the Software and Website (including associated intellectual property rights) are and will remain vested in Shift72 or its third party licensors and/or suppliers (as applicable). These rights are protected by law and international treaties.
4.2. Except as specified in this Subscription Agreement, nothing contained in this Subscription Agreement confers on you any right or interest in, or licence or permit to use, any of the intellectual property rights in the Subscription, Platform, Software or the Website or any other intellectual property rights owned by or proprietary to Shift72 or any of its third party licensors or suppliers.
5. Platform Content
5.1. Without limiting anything in clause 5, it is acknowledged and agreed by Shift72 that all rights, title and interest in and to any Platform Content are and will remain vested in you (or any of your Registered Users or third party suppliers or licensors).
5.2. You shall have exclusive control over the placement and/or removal of any Platform Content on or from (as applicable) the Platform.
6. Restrictions on access and use
6.1. You may not sublicense, assign, resell, share, pledge, rent or transfer any of your rights under this Subscription Agreement in relation to the Subscription, the Platform or any part of them (including the Software).
6.2. You may not use or copy the Subscription or the Platform, in whole or in part, except as expressly provided for in this Subscription Agreement. You may not modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Subscription, Platform, Software or Website or otherwise attempt to:
6.3. (a) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Subscription, Platform, Software or Website, including, without limitation, any such mechanism used to restrict or control the functionality of the Subscription, Platform, Software or Website; or (b) derive the source code or the underlying ideas, algorithms, structure or organisation form of the Subscription, Platform, Software or Website. You will at all times, including during and after the term of this Subscription Agreement, keep the Subscription, Platform, Software or Website, the content associated with them together with all access details, including passwords and codes, confidential.
6.4. In respect of your access and use of the Subscription and the Platform you will comply (and will ensure that all Registered Users comply) with all applicable laws and regulations and all guidelines, procedures and policies notified by Shift72 from time to time.
6.5. In connection with the Subscription and Platform, you agree that: (a) only the Registered Users may access and use the Subscription and Platform; (b) you are solely responsible for the contents of any Platform Content and any other e-mail messages, attachments and stored files and Shift72 reserves the right to remove from its servers any content that may expose Shift72 to potential liability; (c) you may not distribute through the Subscription or Platform any attachments, documents or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law, statute, ordinance or regulation; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines; (d) you may not use the Subscription or Platform for any unlawful purpose; (e) you may not use the Subscription or Platform in a manner that may damage, disable, overburden or impair either the Subscription or the networks connected to the Subscription; (f) you must not attempt to gain unauthorised access to the Subscription or Platform, including but without limitation, through hacking or password mining; and (g) you may not use the Subscription or Platform to unlawfully collect information about third parties, including without limitation, e-mail addresses.
7.1. YOU AGREE TO INDEMNIFY AND HOLD SHIFT72, ITS THIRD PARTY LICENSORS AND SUPPLIERS AND EACH OF THEIR DIRECTORS, OFFICERS AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, INCLUDING LEGAL FEES AND EXPENSES, DUE TO OR ARISING OUT OF YOUR USE OF THE SUBSCRIPTION, THE PLATFORM, THE SOFTWARE, THE WEBSITE AND/OR ANY BREACH OF THIS SUBSCRIPTION AGREEMENT BY YOU (OR PERSONS FOR WHOM YOU ARE RESPONSIBLE). SHIFT72 WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON ARISING OUT OF OR IN CONNECTION WITH THE GRANT OR ACCESS AND USE OF THE SUBSCRIPTION, THE IMPLEMENTATION, ACCESS, MAINTENANCE, OPERATION OR USE OF THE SUBSCRIPTION OR THE PLATFORM OR OTHERWISE IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT.
7.2. Nothing in this Subscription Agreement is intended to have the effect of limiting Shift72’s liability for:
(a) death or personal injury caused by our negligence;
(b) our fraud or misrepresentation; or
(c) any other matter for which it is unlawful or illegal for us to exclude or attempt to exclude our liability.
8. EXCLUSION OF WARRANTIES
8.1. THE SUBSCRIPTION IS PROVIDED, TO THE EXTENT PERMITTED BY LAW, ON AN "AS IS" BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. USE OF THE SUBSCRIPTION, PLATFORM, SOFTWARE AND THE WEBSITE IS AT YOUR OWN RISK.
8.2. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THE DISCLAIMERS IN THIS CLAUSE 9 EXTENDS TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, WHERE THE SUBSCRIPTION PROVIDED UNDER THIS SUBSCRIPTION AGREEMENT ARE ACQUIRED FOR THE PURPOSES OF A BUSINESS, THE GUARANTEES PROVIDED UNDER THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993 (AND ANY EQUIVALENT LEGISLATION OUTSIDE NEW ZEALAND) DO NOT APPLY.
9. LIMITATION OF LIABILITY
9.1. WITHOUT DETRACTING FROM CLAUSE 9, IF YOU SUFFER LOSS OR DAMAGE AS A RESULT OF ANY ACT OR OMISSION OF SHIFT72 ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT, THEN ALL CLAIMS BY YOU AGAINST SHIFT72 WHETHER IN CONTRACT, NEGLIGENCE, TORT (INCLUDING NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE) OR ANY OTHER THEORY OF LIABILITY ARE LIMITED IN AGGREGATE TO THE FEES PAID BY YOU IN THE INITIAL SUBSCRIPTION PERIOD.
9.2. UNDER NO CIRCUMSTANCES WILL SHIFT72, ITS THIRD PARTY LICENSORS OR SUPPLIERS OR ANY OF THEIR DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE, WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE) OR ANY OTHER THEORY OF LIABILITY, FOR ANY DIRECT OR INDIRECT: LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF ANTICIPATED SAVINGS; OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS WHATSOEVER.
10. Payment of fees
10.1. In consideration of your use of the Subscription, you agree to pay to Shift72 the Fees applicable to the Subscription Category you have elected (as specified in the Special Terms), together with any other costs and expenses payable by you pursuant to the terms of this Subscription Agreement and any sales or other taxes applicable to such payments.
10.2. It is acknowledged and agreed that the Subscriber shall be solely responsible for all costs (including personnel costs) that it incurs in connection with the development, design, integration and support of the Platform and any other website used by the Subscriber in connection with the Platform.
10.3. All monetary references in this Subscription Agreement are in US Dollars, unless otherwise stated. All amounts exclude sales and similar taxes (such as VAT and GST) and where payable, these will be paid in addition to such amounts.
11.1. This Subscription Agreement shall be in effect for the Subscription Period.
11.2. You may terminate this Subscription Agreement at the end of any Subscription Period or Renewed Subscription Period by providing Shift72 with written notice of termination no less than 30 days before the Subscription End Date.
11.3. Subject to termination by you or Shift72 in accordance with this Subscription Agreement, at end of the Initial Subscription Term and each Renewed Service Term (as applicable), this Subscription Agreement shall automatically renew (on a recurring basis) for a period equal to the Renewed Subscription Term specified in the Special Terms, unless otherwise stated.
11.4. Unless expressly agreed otherwise by Shift72 (on a case by case basis), this Subscription Agreement will terminate immediately upon written notice from Shift72 if you fail to comply with any term or condition of this Subscription Agreement (including failure to pay any applicable fees or charges).
11.5. You agree:
(a) upon termination of this Subscription Agreement to immediately cease accessing the Subscription and Platform and to immediately pay to Shift72 all Fees and other charges payable in respect of the period prior to termination; and
(b) that, if this Subscription Agreement is terminated prior to the end of the Initial Subscription Period or any Renewed Subscription Period (as applicable), Shift72 shall not be obliged to refund any part of the Fees that you have paid in advance for such period.
12. Privacy and Data
12.1. You acknowledge and agree that Shift72 may access or disclose information about you (including Data) in order to:
(a) comply with the law or legal proceedings served on it;
(b) enforce and investigate potential breaches of this Subscription Agreement or any other unauthorised use of the Subscription or Platform; or
(c) protect the rights, property, or safety of Shift72, its employees, customers or the public.
12.2. You consent to the access and disclosures outlined in this clause 12.
12.3. Shift72 may use technology or other means to protect the Subscription and Platform, protect its customers, or to prevent you from breaching this Subscription Agreement.
12.5. In order to provide you with the Subscription (and improve on it), Shift72 may also collect certain information about the performance of the Subscription and your use of the Subscription and/or the Platform. Shift72 may make use of such information to track usage and to better understand the use of the Subscription and/or the Platform, improve and revise the Subscription based on such usage, publish industry level statistics and for customer support services.
12.6. Title and associated intellectual property rights in the Data remain your property. Access to and use of your Data is subject to you not being in breach of this Subscription Agreement. To the extent necessary to perform the Subscription (and as otherwise contemplated in this clause 12) you grant a non-exclusive licence to Shift72 in respect of your Data. Such licence extends to Shift72 allowing access to the Data to any third party applications that you may enable for use in conjunction with the Subscription, however Shift72 shall not be responsible for any such access or use of the Data by any such third party application provider
12.7. You are solely responsible for maintaining a copy of all Data. Shift72 has in place for its own purposes policies and procedures to prevent data loss (and recovery) but does not make any guarantee around loss of your Data and as such Shift72 expressly excludes any liability for any loss of Data.
13. Export control
13.1. We provide services and use software and technology (including the Software) that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. You acknowledge and agree that neither the Subscription nor the Platform shall be used in, and none of the underlying information (including Platform Content), software, or technology may be transferred or otherwise exported or re-exported to, countries to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, Embargoed Countries), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, Designated Nationals). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Subscription, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
14. Governing law
14.1. This Subscription Agreement and the provision of the Subscription and the Platform will be governed by New Zealand law and you agree to submit to the exclusive jurisdiction of the New Zealand courts in respect of any disputes or claims arising out of or in connection with the Subscription, Platform, Software and/or Website. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
15. Force Majeure
15.1. Neither party shall be liable for any delay or failure to fulfill its obligations under this Subscription Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, war, embargoes, riot or civil disturbance), provided that the affected party shall:
(a) notify the other party as soon as practicable of the events; and
(b) use all reasonable endeavors to continue to perform its obligations and mitigate the effects of the event.
16.1. This Subscription Agreement is personal to you and related parties and may not be assigned by you or otherwise dealt with by you without the prior written consent of Shift72 (which may be withheld in its absolute discretion). Any change of control in you will be deemed an assignment.
16.2. Shift72 may assign this Subscription Agreement at any time by notice in writing to you (including by email).
17.1. Unless otherwise consented in writing by one party to the other, each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this Subscription Agreement.
17.2. The parties agree that the provisions of clause 18.1 do not apply to any information which:
(a) is public knowledge other than breach of this clause;
(b) is received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;
(c) is required by law to be disclosed.
18. Entire Agreement
18.1. This Subscription Agreement together with your Special Terms constitute the entire agreement between the parties with respect to the use of the Subscription and the Platform and supersedes all prior or contemporaneous understandings regarding such subject matter.
19.1. No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition of the Subscription Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the Subscription Agreement.
20.1. If any of provision of this Subscription Agreement is determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any country or area in which these terms are intended to be effective, then to the extent and within the jurisdiction in which that term is illegal, invalid or unenforceable, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.
21.1. Any provision necessary for the interpretation or enforcement of this Subscription Agreement shall survive any expiry or termination.
22.1. In this Subscription Agreement, unless the context otherwise requires:
22.2. Confidential Information includes all information exchanges between the parties to this Subscription Agreement, whether in writing, electronically, or orally.
22.3. Data means any data inputted by you or for which you grant Shift72 with access (including through the Website), but excludes any Platform Content.
22.4. Subscription Agreement means the Subscription Terms and the Special Terms.
22.5. Fees means the set-up costs, subscription fees, support services fees and data overage fees applicable to your Subscription Category, as specified in the Price List and item 7 of the Special Terms.
22.6. Initial Subscription Period means the first 12 month period from the Start Date.
22.7. Platform means the video on demand platform developed by Shift72 for the Subscriber as part of the Subscription.
22.8. Platform Content means the films, material or other content that you (or any of your Registered Users) place on the Platform.
22.9. Price List means the Shift72 “Shift72 video platform” price list, as provided to you by Shift72.
22.10. Proprietary Rights includes all and any rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, proprietary information (protected under contract or at law), trade names, domain names, trademarks, logos, service marks, and other similar rights in intellectual property or industrial property.
22.11. Purpose has the meaning given to it in item 5 of the Special Terms.
22.12. Registered Users means the personnel of your organization that you have authorized to access and use the Subscription and/or the Platform.
22.13. Renewed Subscription Period means the period following the expiry of the Initial Subscription Period in respect of which the Subscription is renewed in accordance with clause 11.3.
22.14. Start Date has the meaning given to it in item 2 of the Special Terms.
22.15. Subscription means:
(a) the bespoke “video on demand” platform development services delivered by Shift72 through the Website, as further described in item 4 of the Special Terms; and
(b) your right to access and use the Platform, the Software and the Support Services in accordance with the terms of this Subscription Agreement.
22.16. Subscription Category means the subscription category described in item 4 of the Special Terms, which shall determine the Fees payable by you under this Subscription Agreement.
22.17. Subscription Period means the period from the Start Date until the date on which this Subscription Agreement is terminated in accordance with its terms or by other lawful means.
22.18. Subscription Terms means these subscription terms.
22.19. Software means the video on demand platform development software (and any related software) owned (or licensed) by Shift72 and operated through the Website.
22.20. Subscriber means the person who registers to access and use the Subscription, as specified in item 1 of the Special Terms (and includes the entity or entities for whom that person enters into this Subscription Agreement on behalf of).
22.21. Support Services means the on-going technical support, helpdesk and training services in relation to the Platform, as offered by Shift72 through the Website and as further described in item 6 of the Special Terms.
22.22. Website means www.shift72.com
22.23. you means the Subscriber, and as the context permits includes the Registered Users and your has a corresponding meaning.