End User Licence Agreement (EULA)

1                Acceptance of this EULA

1.1            Leading Directions Pty Ltd ABN: 42 143 039 463 (us, we or our) license our Software, including all instructions in hard copy or electronic form and any update, modification or release of any part of the Software through any website we make available to you (Site).

2                Who this EULA applies to

2.1            This EULA applies to:

(a)             you, where you are designated an Authorised User by the Account Holder including one of the Account Holder’s Super Users or Site Administrators in accordance with the terms of your Account Holder’s Subscription; and

(b)            any other person or entity using or accessing the Software,

(you and your).

2.2            You accept this EULA by clicking a box indicating acceptance or by using or accessing the Software in any form.

2.3            This EULA will commence on the date on which you accept this EULA and will continue until the date this EULA is terminated in accordance with clause 12 (Term).

2.4            By accepting this EULA, you warrant to us that you have the legal capacity to enter into a legally binding agreement.

3                Licence to use

3.1            In consideration for your compliance with this EULA and if applicable,the terms of the Services Agreement or your Subscription, we grant you a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable and revocable licence to access, display and use the Software for internal purposes for the Term (Licence).

3.2            To the extent that the Software, or any part of the Software, is licensed under a free or open source software arrangement:

(a)             the terms of the Free or Open Source Licence will apply to that Software; and

(b)            the provisions of the Free or Open Source Licence will prevail over the remainder of this EULA in the event and to the extent of any inconsistency.

3.3             This clause 3 will survive the termination or expiry of this EULA.

4                Restrictions

4.1            You must not access or use the Software except as permitted by the Licence and you must not and must not permit any other person to:

(a)             use the Software in any way which is in breach of any applicable laws or which infringes any person's rights, including Intellectual Property rights;

(b)            use the Software otherwise than within your role with the Account Holder and as authorised by the Account Holder in accordance with guidelines issued by the Department of Employment;

(c)             use the Software in any way that damages, interferes with or interrupts the supply of the Software;

(d)            introduce malicious programs into our hardware and software or Systems, including viruses, phishing, malware, ransomware, worms, trojan horses and e-mail bombs;

(e)             use the Software to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, phishing, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(f)              use any program, script, command or send messages of any kind, with the intent to interfere with, or disable, any use of the Software; or

(g)             use the Software to circumvent user authentication or security of any of your networks, accounts or hosts or those of any other third party.

5                Third Parties

5.1            You acknowledge and agree that:

(a)             you agree that the Services include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services and that the provision of the Services may be contingent on, limited to or impacted by, Third Party Inputs; and

(b)            despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible and will have no Liability, for any default or breach of this EULA or Law, if such default or breach was caused or contributed to by any Third Party Inputs.

5.2            You may permit a third party to use the Software licensed to you under this EULA if such use is solely:

(a)             permitted by your privileges as a Super User or Site Administrator; and

(b)            in compliance with this EULA.

6                Privacy

6.1            You will at all times comply with Privacy Laws applicable to the Account Holder.

6.2            Without limiting this clause 6, you may only disclose Personal Information in your control to us, if:

(a)             you or the Account Holder are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner set out in this EULA;

(b)            you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and

(c)             where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.

7                Technical Support Services

7.1            During the Term, where you lodge a help desk request with us, we will provide you with Technical Support Services in accordance with the specifications of the Account Holder’s Subscription as agreed to in the Services Agreement.

7.2            You agree, where we provide any Technical Support Services to you, to assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).

8                Your warranties

8.1            You warrant and agree that:

(a)             you have reviewed this EULA;

(b)            you will use the Software in accordance with this EULA;

(c)             all information and documentation that you provide to us in connection with this EULA is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Software;

(d)            you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Software to be provided in accordance with this EULA, at your cost, and for providing us with the necessary consents, licences, authorities and permissions; and

(e)             if applicable, you will maintain the confidentiality and security of the Account and/or any Authorised User details and passwords used to access the Software.

8.2            This clause 8 will survive the termination or expiry of this EULA.

9                Intellectual Property rights

9.1            All Intellectual Property in the Software and that Intellectual Property developed, adapted, modified or created by us or our officers, employees, contractors, sub-contractors or agents including in connection with this EULA and the Software and any machine learning algorithms output from the Software is and will remain owned exclusively by us or our third party service providers.

9.2            You must not, without our prior written consent:

(a)             copy or use, in whole or in part, any of our Intellectual Property;

(b)            reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(c)             reverse assemble, reverse engineer, reverse compile or enhance the Software;

(d)            breach any Intellectual Property Rights connected with the Software, including altering or modifying any of our Intellectual Property;

(e)             cause any of our Intellectual Property to be framed or embedded in another website;

(f)              resell, assign, transfer, distribute or make available the Software to third parties;

(g)             “frame”, “mirror” or serve any of the Software on any device, web server, computer or server over the Internet or any other network; or

(h)            alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Software.

9.3            As between you and us:

(a)             all Customer Data is and remains your property or the property of the Account Holder (as applicable);

(b)            you grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term solely to:

(i)         supply the Software to you (including to enable you to access and use the Software);

(ii)        diagnose problems with the Software;

(iii)      enhance and otherwise modify the Software;

(iv)       develop other services, provided we de-identify the Customer Data; and

(v)        as reasonably required to perform our obligations under this EULA.

9.4            You must, at all times, ensure the integrity of any Customer Data you input and that your use of the Customer Data is compliant with all laws. You represent and warrant that you have obtained all necessary rights, releases and permissions to provide all Customer Data to us and to grant the rights granted to us in this EULA.

9.5            We assume no responsibility or Liability for Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.

9.6            We have no obligation to monitor any content uploaded to the Software. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove the Customer Data from the Software. We have no liability to you for removing the Customer Data from the Software.

9.7            You acknowledge and agree that we will own any suggestions, enhancement requests, recommendations or other Feedback provided by you relating to the Software without liability to you.

9.8            This clause 9 will survive the termination or expiry of this EULA.

10             Exclusions to liability

10.1         Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with: 

(a)             your acts or omissions; 

(b)            any use or application of the Software by a person or entity other than you, or other than as reasonably contemplated by this EULA;

(c)             contaminations or damage to any computer, system or network;

(d)            delays, inaccuracies, errors or omissions arising out of your use of the Software. For the avoidance of doubt, this extends to the reliability, accuracy, suitability, legality or completeness of the information in such materials or information generally contained or produced through the Software or forms or results produced by the Software (including any performance reports);

(e)             any works, services, goods, materials or items which do not form part of the Software (as expressed in this EULA), or which have not been provided by us; 

(f)              any relocation, configuration or reconfiguration of any Software by you;

(g)             any Third Party Inputs;

(h)            any loss of Customer Data; or

(i)              any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).

10.2         This clause 10 will survive the termination or expiry of this EULA.

11             Limitations on liability

11.1         Despite anything to the contrary, to the maximum extent permitted by law: 

(a)             we will not be liable for Consequential Loss, even if we have been advised of the possibility of such Consequential Loss;

(b)            our liability for any Liability under this EULA will be reduced proportionately to the extent the relevant Liability was caused or contributed to by your acts or omissions; and

(c)             our maximum aggregate Liability arising from or in connection with this EULA (including the Services or the subject matter of this EULA) will be limited to, and must not exceed $100.

11.2         This clause 11 will survive the termination or expiry of this EULA.

12             Termination of your access and this EULA

12.1         If you are an Account Holder, this EULA will terminate in accordance with the Services Agreement.

12.2         Your Account Holder may terminate your access to the Software and this EULA at any time in their sole discretion.

12.3         If your Account Holder’s Subscription is suspended or terminated we will also suspend or terminate your access and this EULA (as applicable).

12.4         If we believe you are misusing the Software or otherwise in breach of this EULA, we may immediately terminate the Account and your access to the Account and this EULA with notice to you.

12.5         This clause 12 will survive the termination or expiry of this EULA.

13             General

13.1         No Exclusivity: The Software will be provided to you on a non-exclusive basis.

13.2         Amendment: We may vary this EULA with notice to you via email or via a notification within the Software.

13.3         Assignment: We may assign, transfer, novate or otherwise deal with all or any of our rights or obligations under this EULA without your prior written consent. You may not assign, transfer or otherwise deal with all or any of your rights or obligations under this EULA without our prior written consent. Any purported dealing in breach of this clause by you is of no force or effect.

13.4         Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this EULA (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a director (or other such senior representative) of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Queensland Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties.

13.5         Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

13.6         Governing law: This EULA is governed by the laws of Queensland, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

13.7         Notices: Any notice given under this EULA must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).

13.8         Relationship of Parties: This EULA is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

13.9         Severance: If a provision of this EULA is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this EULA without affecting the validity or enforceability of the remainder of that provision or the other provisions in this EULA.

13.10      Software updates: We reserve the right at any time and from time to time to change or remove features of the Software.

13.11      Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this EULA does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

13.12      This clause 13 will survive the termination or expiry of this EULA.

14             Definitions

In this EULA:

Account means an account accessible by the Account Holder and the Account Holder’s Authorised Users to use the Software.

Account Holder means a person or entity who is party to a Services Agreement with us.

Authorised User means a user permitted to access and use the Software under an Account Holder’s Subscription and includes Site Administrators and Super Users.

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Queensland.

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Customer Data means the information, materials logos, documents, customer information, personal information, Intellectual Property and other data to which you input into the Software or which is stored by the Software, or generated by the Software as a result of your use of the Software.

Feedback means any idea, suggestion, recommendation or request by you, whether made verbally, in writing, directly or indirectly, in connection with the Software.

Force Majeure Event means any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders (including any delay or disruption caused or contributed to by COVID-19), whether known or unknown at the time of entering into this EULA.

Free or Open Source Licence means any licence in relation to free or open source software.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this EULA or otherwise.

Party means a party to this EULA.

Personal Information is defined in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means the Privacy Act and any other privacy law or privacy regulation.

Sensitive Information is defined in the Privacy Act.

Services Agreement means the agreement between us and the Account Holder for the supply of the Software and related services.

Site Administratorr and Super User means a subset of Authorised Users with enhanced privileges, including the ability to create and manage Authorised Users, and initiate Technical Support Services requests.

Software means our cloud-based software solution that depending on the Subscription provides a case management system (Buddy Note) and forecasting and reporting (Performance Reports) for disability employment service providers.

Subscription means the licence held by the Account Holder by virtue of the Services Agreement between us and the Account Holder.

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.

Technical Support Services means technical assistance as defined in the Services Agreement.

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by and includes Amazon Web Services, Cythera, Atlassian Jira and Microsoft 365.

 

Leading Directions Pty Ltd ABN: 42 143 039 463

Email: info@leadingdirections.com.au

Last update: 19 May 2020