Terms of Service

This Agreement is entered into as of the date of purchase (hereafter “Effective Date”) by and between Aflua Limited (hereafter “Aflua”) and you the purchaser (hereafter “Client”).

The Client wishes to license website software and Aflua wants to license this software (hereafter “Software”) to the Client. Therefore, the parties agree as follows:

 

1. Grant of License

Subject to the following terms and conditions, Aflua grants the Client a non-transferable license to use the Software, comprising a public website (hereafter “Website”), a content management system (hereafter “CMS”) and a database (hereafter “Database”) provided by Aflua.

The Software is to be published on the Internet by Aflua. The Client may use the Software via the Internet for its own use, but may not make copies of the Software in code form or otherwise. The Client may not transfer or modify the Software or incorporate it into other software, or transfer or sublicense the Software to any third party, in whole or in part, in any form, whether modified or unmodified, for the duration of this Agreement.

The data input by the Client is the property of the Client, and upon written request the Database housing this data will be made available to the Client by Aflua, for the duration of this Agreement.

 

2. Fees & Permanence

The Client agrees to pay, upon purchase of the Software, the initial setup fee and the monthly license fees, as detailed in Section 16.

The license granted is for a minimum period of 12 months, after which it may be terminated according to Section 4 of this Agreement and subject to the Client’s proper performance of its obligations. Until such a time as the license is terminated, the Client agrees to continue paying the monthly fees detailed in Section 16.

 

3. Credit Notice

The Client agrees to leave intact Aflua’s design credit notice, as well as the included hyperlink, in the footer of the Website.

 

4. Termination

Aflua may terminate this Agreement at any time if the Client is in default of any of the terms and conditions of this Agreement and fails to correct such default within fourteen (14) days after written notice from Aflua.

The Client may terminate this Agreement after the 24 month default period, giving 1 month written notice. In the event of termination, Aflua will discontinue the Software at the end of the month in course. In the event of termination, Aflua reserves the right to offer continued website hosting services to the Client. The provisions of Sections 7, 8, 10, and 11 hereof shall survive any termination of this Agreement.

Upon termination, the Client agrees to pay the full sum of the remaining license term.

If so required, Aflua will provide the Client with a recent and complete backup of the Software in its entirety, within 28 days.

 

5. Support

In the case that the Client has technical questions in the use of the Software during the course of this Agreement, the Client may submit those questions to Aflua via email, to support@aflua.com. Aflua will endeavour to provide consulting to answer all such reasonable questions without charge to the Client up to the maximum hours per month, as stipulated in the features for each Software instance.

Aflua will periodically contact the Client in order to suggest updates to the Software. Suggested updates may or may not incur a fee.

 

6. Delivery of Licensed Software

Aflua shall use its best efforts to deliver the Software within one month after receipt of the purchase order, however Aflua accepts no liability for, nor is legally bound to this offer. Where possible, all Software is to be delivered to the Client by Aflua, via publication on the Internet,  within 28 days of the purchase order.

 

7. Warranty Disclaimer

Aflua licenses, and the Client accepts, the Software “as is”, once delivered. Aflua provides no warranties as to the function or use of the Software, whether express, implied or statutory, including, without limitation, any implied warranties of merchantability or fitness for particular purpose. Aflua will do everything possible to ensure that the functions contained in the Software will meet the Client’s requirements and that the operation of the Software will be uninterrupted or error free, however Aflua is not legally bound in any way to do so.

 

8. Limitation of Liability

Aflua’s liability to the Client under any provisions of this Agreement for damages finally awarded shall be limited to the most recent monthly amount actually paid by the Client to Aflua. In no event shall Aflua be liable to pay for indirect, incidental, special or consequential damages, including loss of use, loss of profits or interruption of business, however caused or on any theory of liability.

 

9. Notices

All notices in connection with this Agreement shall be in writing and may be given via email or by certified, registered, or first class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.

 

10. Successors

This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.

 

11. Severability

In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.

 

12. Governing Law / Forum

This Agreement shall be governed and interpreted by the laws of New Zealand. Auckland shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.

 

13. Non-Assignment

This Agreement and the licenses granted by it may not be assigned, sub-licensed, or otherwise transferred by the Client without the prior written consent of Aflua.

 

14. Loss / Liability

The Client agrees to indemnify and hold Aflua harmless from any loss, damages, liability or expenses incurred by Aflua or the Client as a result of content, whether textual or otherwise, published via the Software by the Client or by Aflua.

 

15. Entire Agreement

This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in the Client’s purchase order or Aflua’s order acknowledgment forms.

 

16. License Fee

As specified in the online payment form.

In purchasing, Aflua and the Client have caused this Agreement to be executed as of the Effective Date.