IMPORTANT INFORMATION
THIS SOFTWARE IS PROVIDED “AS IS” AND YOU BEAR THE RISK OF USING IT. THIS SOFTWARE WAS CREATED AS PART OF A RESEARCH PROJECT AND IS NOT DESIGNED FOR ANY SPECIFIC COMMERCIAL PURPOSE.
PLEASE READ THESE END USER TERMS CAREFULLY BEFORE ACCESSING AND USING THIS SOFTWARE. BY REGISTERING AN ACCOUNT AND USING THIS SOFTWARE YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH ADELAIDE UNIVERSITY (ABN 41 202 953 738) (“LICENSOR”) AND YOU ARE AGREEING TO BE BOUND BY THESE END USER TERMS. IF YOU DO NOT AGREE TO THESE END USER TERMS, YOU MUST NOT ACCESS OR USE THE SOFTWARE.
1.DEFINITIONS
1.1In these End User Terms:
(a)Confidential Information means any information designated as confidential or which by its nature is confidential or which is disclosed in circumstances importing an obligation of confidence, which is disclosed or made available directly or indirectly by or on behalf of one Party (disclosing Party) to the other party (receiving Party), but does not include information:
(i)already in the public domain or which becomes part of the public domain other than through unauthorised disclosure by the receiving Party;
(ii)that the receiving Party can prove was in its lawful possession prior to disclosure to it under this Agreement and which was not acquired directly or indirectly from the disclosing Party under an obligation of confidentiality;
(iii)that is independently developed by the receiving Party without having utilised the Confidential Information of the disclosing Party; or
(iv)lawfully and bona fide obtained by the disclosing Party from a third party who did not receive the information directly or indirectly from the receiving Party under an obligation of confidentiality.
(b)Improvement means any development, modification, adaptation or improvement of, the Software (irrespective of whether such improvement, variation, modification or development is capable of formal registration or protection) the use of which would infringe the intellectual property rights in the Software.
(c)Intellectual Property means all rights in relation to inventions, patents, registered or unregistered trademarks and service marks, registered designs, copyrights, database rights, design rights, and rights to require information to be kept confidential, applications for any of the above, and any similar right recognised from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
(d)Permitted Purpose means [internal review, testing and assessment of the Software solely to evaluate its functionality and potential utility, and to provide feedback to the Licensor].
(e)Software means the MOVE (Mining Operations Vehicle Electrification) software-as-a-service (SaaS) platform and any associated documentation provided by the Licensor.
(f)Territory means [Australia/worldwide].
2.licence
2.1Upon registration in accordance with clause 3, the Licensor grants to You a royalty free, non-exclusive, non-transferable and non-sublicensable licence to access and use the Software solely for the Permitted Purpose in the Territory.
2.2You must not, and must not permit any third party to:
(a)copy, alter, modify, decompile, disassemble, reverse engineer, translate or create derivative works or reproduce the Software, except to the extent permitted by applicable law;
(b)access or use the Software for any purpose other than the Permitted Purpose;
(c)sub-licence, sell, rent, lease, or otherwise make the Software available to any third party;
(d)remove, obscure or alter any proprietary notice, copyright notice or attribution contained in or on the Software; or
(e)use the Software in any manner that infringes any third party’s rights or breaches any applicable law.
3.registration
3.1To access the Software You must register for an account and provide accurate and current information as requested.
3.2You are responsible for maintaining the confidentiality of Your account credentials and for all activities that occur under Your account.
3.3You must notify the Licensor immediately of any unauthorised use of Your account or any other breach of security impacting Your account.
4.consideration
4.1In consideration of the rights granted under these Terms, You agree to provide the Licensor with written feedback reports upon reasonable request addressing:
(a)the usability and performance of the Software;
(b)suggestions for Improvements or additional features; and
(c)Your assessment of the commercial potential of the Software.
4.2The Licensor may use Your feedback to develop, modify or improve the Software without restriction or obligation to You. For the avoidance of doubt, the provision of feedback does not give You any ownership interest, royalty entitlement or right to future commercial terms in respect of the Software beyond the rights of access expressly granted under these Terms.
5.software updates
5.1The Licensor may, at its discretion, make available future updates to the Software but is not obligated to do so. These Terms will govern any Software updates provided by the Licensor unless such update is accompanied by a separate licence in which case the terms of that licence will govern such update.
5.2No technical support or maintenance is provided under these Terms.
6.intellectual property
6.1All rights (including Intellectual Property rights) in the Software remain vested in the Licensor. Nothing in these Terms have the effect of transferring any ownership rights in the Software to You.
6.2All rights in any Improvements to the Software vest immediately in the Licensor. The Licensor grants You the right to use such Intellectual Property on the same terms as the licence granted under clause 2.1 of these Terms.
7.privacy
7.1The Licensor collects personal information you provide during registration and ongoing use of the Software. This includes your name, email address and any other information requested at account creation.
7.2The Licensor may also collect technical and usage information automatically, including IP address, device and browser information, log data and usage patterns in connection with Your access and use of the Software.
7.3The Licensor handles Personal Information (as defined in the Privacy Act 1988 (Cth)), in accordance with its Privacy Policy which forms part of these Terms.
8.DATA
8.1As between us, You retain all ownership rights in any data that You input into the Software (Licensee Data).
8.2You grant to the Licensor a non-exclusive, worldwide, royalty free licence to collect, host, store, copy, process, transmit and otherwise use the Licensee Data and usage data generated through Your use of the Software, for the purpose of operating and improving the Software, and to enable the Licensor to exercise its rights and perform its obligations under these Terms.
8.3You warrant that You own, or have all necessary rights, licences, permissions and consents required to upload the Licensee Data to the Software.
8.4The Licensor will implement reasonable safeguards to protect Licensee Data against unauthorised access, use, disclosure or destruction, having regard to the research nature of the Software, but does not warrant that Licensee Data will be backed up or recoverable.
9.CONFIDENTIALITY
9.1Each Party (receiving Party) will treat, and shall ensure that its officers, employees, agents and contractors treat, all Confidential Information of the other Party (disclosing Party) (whether in recorded form or communicated or disclosed visually or orally) as proprietary and confidential and shall not directly or indirectly disclose, or allow to be disclosed, such Confidential Information to anyone other than to officers, employees, agents, contractors and advisors of the receiving Party (and in the case of Licensor, students of Licensor) to the extent that they have a need to know for the purposes of these Terms provided that such officers, employees, agents, advisors, contractors or students are instructed as to the confidential nature of the information and agree to keep it confidential.
9.2The receiving Party shall not use, and shall ensure that its officers, employees, agents and contractors do not use, Confidential Information other than for the purposes of, and as permitted by, these Terms.
9.3The receiving Party must take all reasonable action necessary to maintain the confidential nature of the Confidential Information including keeping all records of the Confidential Information secured.
9.4Any use or disclosure of Confidential Information by any person to whom You disclose the Confidential Information shall be taken to be a use or disclosure by You for the purposes of this clause.
10.term and termination
10.1These Terms remain in effect until terminated. Either of us may terminate these Terms at any time by giving at least 14 days prior written notice to the other party.
10.2The Licensor may also immediately terminate these End User Terms and disable Your access to the Software if You are in breach of these Terms and you do not remedy that breach within 7 days of a written notice from the Licensor.
10.3Upon termination of these Terms:
(a)the Licensor will disable Your access to the Software, and You must immediately cease all use of the Software; and
(b)each party must, upon request by the other party, destroy or return to the other party any Confidential Information belonging to the other party.
10.4Termination will not affect the accrued rights of the parties arising out of these Terms up to, and as at, the date of termination and all other provisions which are expressed to survive will remain in full force and effect.
10.5The following clauses will continue in full effect after expiry or termination: clause 6, 8, 9, 11, 12, 13, 15 and this clause 10.4.
11.warranties’
11.1You acknowledge that the Software is research grade and is provided on an “as is” basis with no service level commitment, uptime guarantee or assurance of continuity.
11.2To the extent permitted by law, and subject to clause 12.2 below, the Licensor does not make any express or implied warranties in relation to the Software including as to (a) merchantability, satisfactory quality or fitness for a particular purpose; (b) accuracy, reliability, completeness or currency; (c) non infringement of any third party rights; and (d) that the Software is free of defects, errors or vulnerabilities, or that its operation will be uninterrupted or error free.
12.LIABILITY
12.1To the extent permitted by law, and subject to clause 12.2, the Licensor excludes all liability for any loss or damage of any kind arising out of or in connection with Your use of or reliance on the Software, whether in contract, tort (including negligence) or otherwise.
12.2Nothing in this Agreement excludes any guarantee, warranty or condition implied by law that cannot be lawfully excluded (including under the Australian Consumer Law). The Licensor’s liability with respect to any breach of a consumer guarantee under the Australian Consumer Law and any equivalent State or Territory legislation, is limited, in the sole discretion of the Licensor, to the replacement or repair of goods, the re-supply of services or the cost of having services re-supplied (as applicable).
12.3To the extent permitted by law, neither party will be liable to the other party for any lost profits, revenue, anticipated savings, expenditure or business opportunities, loss of or damage to data or goodwill or any indirect or consequential loss.
13.PUBLICITY
13.1You must not publicise Your participation in the evaluation of the Software or make any public statement regarding the Software without the Licensor’s prior written consent, except as required by law.
14.DISPUTE RESOLUTION
14.1Any dispute arising out of or relating to these Terms will be addressed as follows:
(a)the dispute will be formally referred to the Deputy Vice Chancellor Research and Innovation or Chief Executive Officer (or equivalent or delegate) of each party;
(b)if the dispute fails to resolve within 7 days of referral pursuant to clause 14.1.1, either Party may refer the dispute to mediation;
(c)in default of agreement between the Parties to the contrary, the mediator will be appointed on the application of either party by the president for the time being (or delegate) of the Australian Disputes Centre (ADC). The mediation will be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC;
(d)the foregoing will not preclude either party from making an urgent application for injunctive relief.
15.General
15.1This is the entire agreement between the parties about its subject matter and replaces all oral and written prior communications and agreements between the parties.
15.2Nothing in these Terms constitutes a relationship of employer and employee, principal and agent, or trust, or partnership between us.
15.3You must not assign or otherwise deal with any of Your rights or obligations under these Terms, or purport to do any of those things, without the Licensor’s prior written consent.
15.4These Terms may only be varied by the parties in writing.
15.5A waiver by a party in respect of a breach of a provision of these Terms must not be taken to be a waiver unless given in writing and will not constitute a waiver of any other breach. The failure by a party at any time to enforce a provision of these Terms must not be construed as a waiver by that party of that provision or in any way affect the validity of these Terms or any part of them.
15.6A clause or part of a clause of these Terms that is void, voidable, unenforceable or illegal in any jurisdiction will not apply in that jurisdiction, but will apply in jurisdictions where it would not be void, voidable, unenforceable or illegal and the rest of these Terms will still apply.
15.7These Terms are governed by the law in force in South Australia and each Party submits to the non-exclusive jurisdiction of the courts of South Australia.