Subscription Service Software Agreement 2017-R0
YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE. BY (i) PROCEEDING WITH AN ORDER FOR SOFTWARE, AND/OR UPGRADE OF THE SOFTWARE, AFTER RECEIVING A COPY OF THIS DOCUMENT; OR (ii) CLICKING "I Accept the Terms of the Licence Agreement," WHEN REGISTERING FOR OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND AND ABIDE BY ITS TERMS AND CONDITIONS.
This is a software subscription agreement ('Licence Agreement') between you ('you' or 'Licensee') and CyTrack Intelligence Systems Pty Ltd ('CyTrack') for use of the online software system provided by CyTrack ('Software'). This is not an agreement for sale of the Software. This is a licence agreement only. Please read the terms and conditions of this Licence Agreement before using the Software. By verifying and/or using the Software, you are agreeing to be legally bound by this Licence Agreement and the terms and conditions set out below.
By entering into this Licence Agreement, you also agree to be bound by CyTrack's Terms and Conditions. You may also order additional support services, which will be subject to CyTrack's Support Services Terms and Conditions.
- You may place an order for a subscription to the Software by completing and signing the order form provided by CyTrack. The order must specify:
- your name and contact details, as prompted;
- the services to be selected for the subscription;
- the minimum term for your subscription ('Minimum Term') from the options available on the order form;
- the regular invoicing cycle ('Subscription Period') and subscription fee payable for each Subscription Period ('Subscription Fees') based on the options selected in your order; and
- any other information required by mandatory fields on the order form.
- CyTrack will set up:
- an administrator account associated with the Licensee's subscription ('Administrator Account'); and
- linked accounts for each individual ('User') permitted to use the Software (each a 'User Account'), if you request it and provide the relevant Users' details;
and will provide the access details required to access each account to the Licencee or each relevant User.
- The Licensee's nominated administrator may use the Software:
- to create additional User Accounts;
- to modify User Accounts; and
- to delete User Accounts.
Each User Account may only be used by the nominated User associated with the User Account.
- The Licensee shall ensure that its Administrator Account and each User Account is protected at all times from misuse or any form of unauthorised use or access. The Licensee shall be solely responsible for the use, supervision, management and control of its accounts. The Licensee is responsible for all activities that occur under the accounts regardless of whether the activities are undertaken by the Licensee, its employees, permitted users or a third party. The Licensee must notify CyTrack immediately if it believes an unauthorised third party may be using or attempting to use one of its accounts. CyTrack is not responsible for unauthorised access to an account.
- In consideration of the Licensee's payment of the relevant fees to CyTrack, CyTrack grants the Licensee a limited, non-exclusive, non-transferable licence to access and use the Software, documentation and related materials, including any updates, new releases, modifications or enhancements provided by CyTrack (collectively, the 'Licenced Material') for the Term, solely in accordance with the terms and conditions set out in this Licence Agreement. It does not give the Licensee the right to own the Licenced Material.
Bundled software licence information
- The Licensee might also receive Software produced by other companies as part of a 'bundle' of utility Software ('Bundled Software'). This Software might have been included in the CyTrack product to enhance productivity. Bundled Software is provided under licence from the original manufacturer. In the absence of a discrete licence from the manufacturer to the customer, the Licensee is permitted to use the Bundled Software under the same terms as this licence from CyTrack. The Licensee agrees to be legally bound by the provisions of this licence for use of any and all Bundled Software included with the Software that does not have its own licence included in its packaging. Under the provisions of this Licence Agreement, 'Bundled Software' is included in the terms 'Licenced Material' and 'Software'.
- You may only:
- access the Software using the directions and allocated Administrator Account or User Account; and
- access the version of the Software provided by CyTrack under this Licence Agreement.
- You may be required to install the Software, or parts of it, on your hardware in order to utilise the Software. Before ordering the Software, you should check with CyTrack whether the Software will be compatible with the hardware you intend to use the Software on.
- Use of the Software may require an internet connection. You will be responsible for all internet connection costs.
- You must not:
- copy, resell, distribute or transfer all or any part of the Software or Licenced Material except as permitted under the Copyright Act 1968 (Cth) ('Copyright Act');
- provide access to the Software or Licenced Material to any person other than permitted Users each with their own User Account;
- allow any person other than the nominated User to use or access a User Account;
- sub-license or sub-contract any of its rights under this Licence Agreement without the written consent of CyTrack, which may by withheld in its absolute discretion;
- attempt to circumvent usage limits or quotas (including but not limited to limits on the number of Users accessing the Software at any one time) or avoid incurring fees;
- merge all or any part of any software contained in or provided in connection with the Software with any other software without CyTrack's prior written permission;
- commercially exploit the Software;
- make any part of the Software available to any third party;
- distribute or transmit any part of the Software by any means.
- link to, frame or mirror any part of the Software without CyTrack's written consent;
- attempt to disassemble, decompile or otherwise reverse engineer or reverse compile the Software, except as permitted under the Copyright Act;
- alter, customise, modify, tamper with or create derivative works of the Software or Licenced Material;
- remove, obliterate or alter any proprietary notice on the Software or Licenced Material; or
- use or encourage, promote, facilitate or instruct others to use Software or any other software provided in connection with Software for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive.
- The Licensee shall notify CyTrack immediately if the Licensee becomes aware of any unauthorised use of the whole or part of the Software by any person, including any activity that would violate the subscription conditions in clauses 7 or 8.
- All industrial or intellectual property rights throughout the world including but not limited to copyright (including future copyright), patents, trade marks, trading names, business names, domain names, websites, website content, designs, drawings, graphics, artwork, brands, logos, know-how, ideas, inventions, improvements, systems, methods, plans, models, processes, manuals, strategies, solutions, technical data, formulae, databases, trade secrets, computer software, source code, object code, circuit layouts, whether or not now existing, and including all future rights whether or not registered or registrable at law, and all associated goodwill and moral rights (collectively, 'Intellectual Property') are reserved, except as otherwise provided under this Licence Agreement.
- In relation to any information or material the Licensee adds or uploads to the Software ('Content'), the Licensee:
- grants CyTrack a limited, non-exclusive, transferable, irrevocable, royalty-free licence to use the Content for the purposes of CyTrack performing its obligations (including under this Licence Agreement and any other agreement with the Licensee) and facilitating the operation of the Software;
- represents and warrants that the Content does not violate the law (including privacy laws), misappropriate the rights of any third party, or otherwise violate a term of this Licence Agreement or CyTrack's Terms and Conditions;
- represents and warrants that the Licensee owns all Intellectual Property in the Content or is otherwise authorised to add or upload the Content to the Software; and
- acknowledges that CyTrack reserves the right to remove any Content without notice.
- The parties agree that, as between the parties:
- CyTrack retains the title to the Licensed Material, and all Intellectual Property therein; and
- the Licensee retains the title to the Content, and all Intellectual Property therein.
- The Licensee covenants and agrees:
- not to do any act or thing which might invalidate or be detrimental to the Licensed Material or to the Intellectual Property therein;
- not to represent that it has any proprietary, intellectual or moral right, title or interest in the Licensed Material, or register or attempt to register any such rights;
- not to use or register any Intellectual Property which through its similarity might be confused with any Intellectual Property in the Licensed Material;
- to bring to the immediate attention of CyTrack any actual, suspected or threatened infringement of Intellectual Property in the Licensed Material, and to provide CyTrack with reasonable assistance in such a claim.
- If any part of the Software is modified, altered or enhanced ('Modifications'), whether or not they are made or authorised by CyTrack:
- as between the parties, the modified Software remains the property of CyTrack in all respects;
- all Intellectual Property arising out of any such Modifications is hereby assigned to and vests in CyTrack;
- the Licensee must execute all documents and do all acts and things required to give effect to this clause, including obtaining a written assignment of the Intellectual Property from a third party to CyTrack; and
- the Licensee must provide CyTrack with a copy of any such Modifications.
- CyTrack may make available updates, modifications, enhancements or new releases to the Software from time to time ('Software Updates'). CyTrack will provide any Software Updates for the duration of the Licence Agreement at no extra charge as part of the Subscription Fee.
- You may order support services subject to CyTrack's Support Services Terms and Conditions.
- The Licensee must pay the relevant Subscription Fees to CyTrack in advance of each Subscription Period in accordance with CyTrack's Support Services Terms and Conditions.
- CyTrack reserves the right to review and adjust the Subscription Fees, provided that:
- CyTrack may not increase the Subscription Fees during the Minimum Term;
- CyTrack may not increase the Subscription Fees by more than 10% per year; and
- CyTrack must provide the Licensee with thirty (30) days written notice of the new Subscription Fees prior to the new Subscription Fees coming into effect.
Effective date and termination
- The licence is effective on the date the Licensee acquires the Licenced Material, and will remain in force until terminated in accordance with its terms.
- The Licensee may terminate this Licence Agreement:
- at or after the end of the Minimum Term, by giving at least ninety (90) days prior written notice;
- as at the day before a proposed increase in the Subscription Fees, by giving at written notice within fourteen (14) days of receiving a notice under clause 20(c);
- immediately by giving at written notice within sixty (60) days of receiving a notification under clause 47; or
- immediately on written notice on the happening of one of the following events:
- CyTrack's unremediable breach or threatened unremediable breach of any of its obligations under this Licence Agreement or CyTrack's Terms and Conditions;
- CyTrack's unremedied breach of any of its obligations under this Licence Agreement or CyTrack's Terms and Conditions after having been given 30 days written notice to remedy such breach;
- the occurrence of any of the following events with regard to CyTrack's affairs:
- any step is taken to enter into any scheme of arrangement with creditors,
- any step is taken to appoint a receiver or manager, a liquidator, an administrator or other like person,
- the suspension of debts generally, or
- CyTrack is deemed insolvent for the purposes of any provision of the Corporations Act 2001 (Cth) ('Corporations Act') or corresponding applicable laws.
- CyTrack may, at its option, suspend access to the Software or terminate this Licence Agreement immediately if payment of the applicable Subscription Fee is not received by the start of any Subscription Period.
- CyTrack may, at its option, suspend access to the Software or terminate this Licence Agreement immediately on written notice on the happening of one of the following events:
- your unremediable breach or threatened unremediable breach of any of your obligations under this Licence Agreement or CyTrack's Terms and Conditions;
- your unremedied breach or threatened breach of any of your obligations under this Licence Agreement or CyTrack's Terms and Conditions after having been given 30 days written notice to remedy such breach;
- the occurrence of any of the following events with regard to your affairs:
- any step is taken to enter into any scheme of arrangement with creditors,
- the suspension of debts generally, or
- you are deemed insolvent for the purposes of any provision of the Corporations Act or corresponding applicable laws;
- your merger or takeover by another party.
- Upon termination of this Licence Agreement for any reason, you must immediately cease using the Software and Licenced Materials and destroy or return to CyTrack all Licenced Materials in your possession or control.
Disclaimer on warranties
- The Licensee expressly acknowledges and agrees that the use of the Licenced Material is at its own risk. The Licenced Material is furnished 'as is' and without warranty of any kind. CyTrack does not warrant that:
- the Licenced Material or its functions will meet the Licensee's requirements;
- the operation of the Software will be uninterrupted or error-free;
- the Software will provide any functions not expressly stated by CyTrack.
- The Licensee acknowledges that:
- it has not relied on any statement, representation, warranty, conduct or undertaking made or given by CyTrack or any person on its behalf, other than those set out in this Licence Agreement; and
- it has relied on its own skill and judgment in deciding to acquire the Software and enter into this Licence Agreement.
- CyTrack strongly recommends You regularly backup Your data to an independent storage facility to guard against catastrophic loss of data. CyTrack does not warrant or guarantee that any backups maintained by the Software, including those managed by third-party providers, will be failsafe or effective in any given situation. CyTrack shall not be responsible for any costs, loss or damage associated with loss of data, recreating data, substitute equipment or programs, claims by third parties or similar costs.
- CyTrack will not be liable, in any respect, for any claim, liability, cost, loss or damage resulting from or arising directly or indirectly from:
- any disruption to, or limitations of, the Licensee's internet connection;
- any disruption to CyTrack's internet connection beyond CyTrack's reasonable control;
- any disruption to telecommunication networks or the internet generally;
- any changes or works of the kind described in clause 23 of the CyTrack Terms and Conditions carried out without CyTrack's prior agreement;
- any changes to the Software made by or on behalf of the Licensee, whether or not carried out with CyTrack's prior agreement;
- any breach by the Licensee of this Agreement, the CyTrack Terms and Conditions or any other agreement with CyTrack; or
- any negligence on the part of the Licensee.
- By accessing the Software, the Licensee assumes all risks associated with its use, including but not limited to the risk that its computers, software or data may be damaged by any virus transmitted by the Software.
- The Licensee is responsible for use of the Software by any person using the Administrator Account or any User Account. The Licensee must ensure those parties comply with the Licensee's obligations under this Licence Agreement. The parties agree that any breach of this Licence Agreement by any person using an Administrator Account or User Account associated with the Licensee will be treated as a breach of this Licensee Agreement by the Licensee.
- In no case shall the liability of CyTrack exceed the amount of the Subscription Fee paid by the Licensee in the preceding 3-month period.
- To the fullest extent permitted by law, CyTrack's excludes:
- any term, condition or warranty that may otherwise be implied by custom, law or statute;
- any liability for loss caused by the negligence of CyTrack; and
- any liability for any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of time, loss of interest, damage to credit rating or loss or denial of opportunity.
Some countries and states do not allow the exclusion of implied warranties, terms or conditions, so the above exclusions may not apply to you. In that case the following statements apply to the fullest extent permitted by law:
If CyTrack is liable for a breach of a term, condition or warranty described above, its liability is, to the fullest extent permitted by law, limited to any one or more of the following as CyTrack determines in its absolute discretion:
- in relation to goods:
- replacing or repairing the goods;
- supplying an equivalent item of the goods;
- paying the cost of replacing or repairing the goods; or
- paying the cost of acquiring or hiring equivalent goods; and
- in relation to services:
- the re-supply of the services; or
- the payment of the cost of having the services re-supplied.
- The Licensee shall fully indemnify and hold harmless CyTrack, its related bodies corporate (as defined in the Corporations Act), and their respective directors, officers, employees, agents and subcontractors, against any claim, liability, cost, loss or damage whatsoever (whether direct, indirect or consequential, real or imagined, past, present or future) arising out of:
- any breach by the Licensee of this License Agreement;
- any other act or omission of the Licensee, including without limitation in relation to any claim that any Modifications made by the Licensee infringe any Intellectual Property or other rights of any third person; or
- the use of the Software by the Licensee or by any person using any account associated with the Licensee contrary to this Licence Agreement or the directions of CyTrack.
Privacy opt in/opt out and spamming
- The Licensee acknowledges that CyTrack may collect and store information relating to customer service, Software performance and Licensee preferences. Some of the information CyTrack collects may be information or an opinion about an individual, whether true or not, which identifies the individual or from which the individual's identity is reasonably identifiable ('Personal Information'). CyTrack warrants that only authorised personnel will have access to such Personal Information stored or processed using the Software. CyTrack uses the information it collects for staff training, customer services, upgrading Software, Software revisions and to improve Software quality and delivery.
- The Licensee consents to CyTrack disclosing or transferring Personal Information to local or overseas external service providers for storage or other purposes in connection with provision of the Software, and will procure the prior consent of any party whose Personal Information is provided to CyTrack by the Licensee or is otherwise uploaded to the Licensee's account. The Licensee acknowledges that, as a result of the consent in this clause 36, CyTrack is relieved of any requirement under privacy laws to ensure the overseas recipient does not breach the privacy laws.
- CyTrack supports the right to privacy and does not condone the use of spamming as a technique for direct marketing. CyTrack does not use spamming techniques to solicit information. The Licensee may provide written notice to CyTrack opting out of any marketing/customer database. Upon receipt of such written notice, CyTrack will remove the Licensee from the relevant marketing/customer database within 5 business days.
Governing law and severability
- This Licence Agreement shall be governed and construed in accordance with the laws of Australia and the State of Queensland. Furthermore it is understood that this Licence Agreement shall be treated as though it were executed in Queensland and the parties agree that any action relating to this Licence Agreement shall be instituted and prosecuted in the courts of the competent jurisdiction of the State of Queensland.
- If for any reason, a court of competent jurisdiction finds any provision or portion of this Licence Agreement unlawful, void, or for any reason unenforceable, it shall be deleted and shall in no way affect the enforceability of any other provisions of this Licence Agreement.
- The failure or delay by a party to exercise any right under this Licence Agreement will not be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release any other party from strict compliance in the future with the same or any other obligation.
- CyTrack may assign this Licence Agreement at any time. The Licensee may assign this Licence Agreement with the prior written consent of CyTrack, which consent shall not be unreasonably withheld.
- CyTrack may subcontract any of its obligations under this Licence Agreement to any person.
- Clauses 8, 11, 13–16 and 25–34 survive termination of this Licence Agreement.
- The following rules of interpretation apply unless the context requires otherwise:
- headings are for convenience only and do not affect interpretation;
- the singular includes the plural and vice versa;
- if a word or phrase is defined, then its other grammatical forms have a corresponding meaning;
- a reference to a clause, schedule, annexure or exhibit is to a schedule, annexure or exhibit to this Licence Agreement;
- a reference to legislation, includes but is not limited to a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument under it;
- a reference to conduct, includes but is not limited to, an omission, statement or undertaking whether or not in writing;
- a provision of this document must not be construed adversely to a party on the grounds that the party drafted that provision;
- a reference to writing, includes any mode of representing and reproducing words, figures, drawings or symbols in a visible form;
- if a period of time runs to or from a given date, act or event, then the time is calculated exclusive of the date, act or event; and
- a reference to $ means Australian dollars unless otherwise indicated.
- Should you have any questions regarding this Licence Agreement, you may call your local office available at www.cytrack.com or write to CyTrack.
- proceeding with an order for Software and/or installation or upgrade of the Software, after receiving a copy of this document; or
- clicking "I accept the terms of the Licence Agreement," when registering for or using the Software,
- CyTrack reserves the right to amend, revise or replace this Licence Agreement from time to time by posting a notification via the Software. By:
- continuing to use the Software after receiving such a notification; or
- clicking "I accept the terms of the amended Licence Agreement,"
- Except as expressly stated, this Licence Agreement is the complete and exclusive agreement between us concerning the Software and supersedes all prior agreements, proposals or communications, verbal or written between us relating to the subject matter in this Licence Agreement.