End User License Agreement (EULA)

 

Last edited 29th September 2020

IMPORTANT: PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE INSTALLING OR USING ANY PART OF THE SOFTWARE (AS DEFINED BELOW), INCLUDING ANY MODULE (AS DEFINED BELOW) TO THE SOFTWARE. INSTALLATION, USE OR RETENTION OF THE SOFTWARE OR ANY MODULE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT. If you do not accept or agree with the provisions of this Agreement, you must not install, log in, use, or retain any part of the Software or any Modules to the Software.

Definitions

The following definitions apply in this Agreement:

“Software” means the Adi Insights Inc. platform (also referred to as “the Platform”) and also includes any associated programs, equipment, files, libraries and documentation (including any on-line documentation) which we elect to provide or make available to you. The Software base component is accessed via web browser login. There are various other modules (collectively the “Modules” or “Products”) that add to the functionality of the Platform as a whole or some may be used independently and are available at additional cost. These Modules include but are not limited to: the phone app, AdiClock, Adi Channels, payroll integrations, biometric equipment, statistics import, or similar.

“we”, “us” and “our” means Adi Insights Inc. and its subsidiaries and group companies; and

“you” or “your” means the entity who or which logs in, downloads or uses any part of the Software. Where a person downloads any part of the Software for use by another entity, then the person downloading the Software must identify that other entity at the time of downloading and references to “you” or “your” include that other entity and its officers and employees.

Use of Software

Upon authorized access, we grant you a personal, non-exclusive, non-transferable license permitting you to use the Software, including any Module, solely for your internal business purposes. To use the Software over the internet, you will need to select a username and a password to access the Platform.  If you only use the AdiClock Module, then to access such Module you will need to provide either a biometric fingerprint or PIN (Personal Identification Number). Any other Modules you wish to purchase will be accessed via the Software. Data processing is performed on our server and all data entered by you is immediately saved on either our server or a third-party server.

In consideration of your access to, and use of, the features, functions and services in the Software, you will (a) provide accurate, current and complete information as may be prompted by any registration forms in the Software (“Registration Data”); (b) maintain the security of your user identification and password (collectively, “Login Information”); (c) maintain and promptly update the Registration Data, and any other information you provide to us through the Software; (d) promptly advise us whenever there is a change to your contact information or any other information in your account; (e) receive communications from us; and (f) be fully responsible for all use of, and any actions that take place using your account and any applicable Login Information.  You represent and agree that all information you provide to us in connection with its access to and use of the Software is, and shall be, true, accurate and complete to the best of your knowledge, ability and belief.

You grant us a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, sublicensable and transferable license to use the Registration Data and Login Information for purposes of performing the services to you. You will be responsible for obtaining all rights, permissions, and authorizations to provide the Registration Data and Login Information to us for use as contemplated under this Agreement. You agree to indemnify us for any third-party claims, demands or losses arising as a result of your failure to obtain all such necessary rights, permissions and authorizations.

We will have the capability to view your data but we will not intentionally view data except as reasonably required in connection with our provision of technical support, determination of billing amounts, or verification or investigation of issues relating to security. The information you provide us is subject to our Privacy Policy, the terms of which are incorporated herein.  We take the privacy of your information seriously.  We encourage you to read and become familiar with our privacy practices as described in the Privacy Policy. If agreed by us in writing, we will also comply with your additional privacy policies. We take reasonable measures to prevent unauthorized access to your data.

You are responsible for procuring, at your own expense, all associated items required to access and use the Software, including your hardware, operating system software, web browser, connection to the internet and internet services.

You must not attempt to decode or circumvent the access protections of the Software or remove any copyright or Software protection statements embedded in the Software. You must take reasonable precautions to keep your Login information and/or PIN confidential and must not cause or permit your password or PIN to be disclosed or used by any other individual. Further, you may not show the Software, via screen share or otherwise, to any person that is, or may reasonably expect to be, a competitor of us.

You must not (a) reverse engineer, reverse assemble or disassemble, reverse compile or de-compile, decode, modify, or create derivative works of the Software or attempt to ascertain the source code of the Software by any means; or (b) cause or permit use of the Software in or for any other company or other legal entity or lease, loan, rent, sub-license, distribute, broadcast or permit the further download by third parties of any part of the Software or include any part of the Software in other compilations of software. You agree (a) the Software is a valuable asset of ours and is supplied to you on a restricted and confidential basis; (b) the Software will be kept secret and confidential by you at all times; (c) all copyright in the Software and all our other software (including files, libraries and documentation) is retained by us and title to the copy of the Software which is downloaded by you and to any copies, reproductions, adaptations, enhancements or translations made of the Software and any interfaces with the Software is also retained by us and to the extent necessary you hereby assign intellectual property rights in same to us; (d) to reproduce and include the copyright notice and any other legend specified by us on any copies of the Software you make; (e) at all times to take reasonable steps to protect the Software from unauthorised access and use; (f) to give us prompt notice of any infringement of copyright or any of our rights which comes to your attention; and (g) before disposing of any media, to ensure any of the Software contained on it has been erased or destroyed.

Feedback

You may provide suggestions, ideas, inventions, innovations, improvement or enhancement requests, feedback, recommendations, or other information to us regarding the Software, in whatever form, whether or not patentable or copyrightable or made or conceived solely or jointly with others (collectively, “Feedback”). Such Feedback is voluntary. We may use Feedback for any purpose without obligation of any kind, and you acknowledge and agree that such Feedback shall become the sole property of Adi Insights Inc. and its subsidaries, and you hereby transfer and assign all right, title and interest in the Feedback exclusively to us and any and all related patent, copyrights, trademarks, trade names and other intellectual property rights and applications therefor, in Australia, the United States and elsewhere.

 

Discontinuance and Termination of Licence

We reserve the right to terminate this Agreement, or to refuse, restrict, suspend, or discontinue your access to the Software (or any portions, components, modules, or features of the Software), at any time, without notice or liability, if we determine you:

  • pose a security risk to the Platform or any third party
  • could adversely impact the Platform
  • could subject Supplier, our affiliates, or any third party to liability,
  • could be fraudulent
  • are in breach of this Agreement;
  • are in breach of payment obligations of your commercial agreement with us

On termination of this Agreement, you must immediately delete all copies of the Software and provide us with a certification that you have done so. The termination of this Agreement will be without prejudice to any rights which we may have. Upon termination of this Agreement by us for whatever cause, we are discharged and released from all obligations under this Agreement. Your obligations of confidentiality and non-disclosure specified in this Agreement will survive the termination of this Agreement and you must continue to comply with those obligations notwithstanding the termination.

Confidential information

“Confidential Information” means information in any form or media disclosed by any party (the “Disclosing Party”) to the other party (the “Receiving Party”) and treated by the Disclosing Party as confidential.  Confidential Information will not include information which (a) was previously known by the Receiving Party without obligation of confidentiality, (b) is generally available to the public, or (c) is subsequently disclosed to the Receiving Party by a third party other than one under any obligation of confidentiality. As and between the parties, Subscriber Data constitutes the Confidential Information of Subscriber.

The Receiving Party shall maintain the confidentiality of the Disclosing Party’s Confidential Information at all times during and after the Term of the Agreement.  The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any other person or entity.  Upon termination of this Agreement, each Receiving Party will deliver to the Disclosing Party all items containing any Confidential Information or make such other disposition thereof as the other may direct, except as otherwise necessary for record keeping, business continuity or archival purposes.

If the Receiving Party is required by legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall notify the Disclosing Party promptly upon becoming aware of such requirement and shall take such reasonable steps as the Disclosing Party may request, at the Disclosing Party’s expense (including the reimbursement of the Receiving Party’s reasonable attorney’s fees and related costs incurred in taking such steps) to protect the confidentiality of the Confidential Information.

Availability of and Upgrades to the Software

We may host the server component of the Software on our own hardware or we may arrange for a third party to provide hosting services for us. You acknowledge that your ability to access and use the server is dependent on many factors beyond our control, including the operation and performance of your own computer equipment, your communications infrastructure, ISP arrangements and telecommunications networks. We accept no liability for any interruption or unavailability of the server (regardless of the cause) but where possible we will (a) schedule planned maintenance activities to minimize interruption or interference with your use of the Software, and (b) give advance notice of planned maintenance activities which will impact your access to and use of the Software.

We may elect at our sole discretion to provide upgrades from time to time. All upgrades are subject to the terms of these Terms and Conditions.

Limited Warranty, Liability and Disclaimer

We warrant that we have the right and authority to grant a License to use the Software and that the Software, when used in an operating environment approved by us, conforms in all material respects to its published specifications. We will use reasonable endeavors to deliver Software and provide any services to you within agreed time frames but we shall not be liable for any delay in the provision of services, and availability of the Software, arising from events of force majeure or any other cause whatsoever. We make no warranties to the availability of the Software. Some laws (such as the Trade Practices Act) imply conditions and warranties into certain contracts. Some laws do not allow those contracts to exclude, modify or restrict those implied terms (“non-excludable terms”). These conditions are limited so that they do not exclude, restrict or modify those non-excludable terms. To the extent permitted by law, our liability for breach of any non-excludable terms is limited, in our discretion, to re-supplying the Software or services or paying you the cost of re-supply. SUBJECT TO THE ABOVE WARRANTIES AND THE ABOVE PROVISO REGARDING NON-EXCLUDABLE TERMS, THE SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE NEITHER MAKE NOR APPROVE THE MAKING OF ANY WARRANTY OR REPRESENTATION THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT ACCESS TO OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ARE RESPONSIBLE FOR ENSURING THAT THE SOFTWARE AND ANY SERVICES WILL SATISFY YOUR REQUIREMENTS. If circumstances arise where you are entitled to claim damages from us or any other party involved in the supply, support and maintenance of the Software or the provision of services relating to the Software (a “relevant party”), then notwithstanding the other provisions of this License, our liability (and the liability of any other relevant party) to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim including, without limitation, negligence) is limited to the lesser of (a) the amount of any actual direct loss or damage which you sustain; (b) the amount of the Fees paid by you in the preceding 12 months; and (c) our cost of replacing or repairing any defective Software. We are not liable for losses or damages of third parties claimed against you caused by our negligence. In no event will we be liable for actual or anticipated lost profits, lost savings, lost or damaged data or any incidental, special, exemplary, punitive or consequential damages even if we have been advised of the possibility of such damages. 

Copyright Policy and Digital Millennium Copyright Act (DMCA) Procedures.

We reserve the right to terminate your or any third-party’s right to use the Software if such use infringes the copyrights of another. We may, under appropriate circumstances and at its discretion, terminate your or any third-party’s right to access to the Software, if we determine that you or a third-party is a repeat infringer. If you believe that any material has been posted via the Software by any third-party in a way that constitutes copyright infringement, and you would like to bring it to our attention, you must provide our DMCA Agent identified below with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Software of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) your name and contact information, including telephone number and email address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The contact information for Adi Insight’s DMCA Agent for notice of claims of copyright infringement is: Adi Insights. Attn: Copyright Agent, email: legal@adiinsights.com.

Additional Terms

Neither party is responsible for failure to fulfill any obligation due to causes beyond their reasonable control. Due to the ongoing nature of these provisions, we may update this Agreement from time-to-time and may amend it at any time to incorporate additional rules, policies, procedures and other instructions concerning access to, and use of, the Software or additional features, materials, products, opportunities, or services that we may make available on or through the Software. We will notify you of any material updates to this Agreement.  Your continued use of the Software will be deemed your acceptance of the new terms of this Agreement. If any provision of this Agreement is found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of this Agreement will remain binding. You agree that this is the complete and exclusive statement of the agreement between you and us and that it supersedes all proposals or prior agreements, oral or written, and all other communications between all parties relating to the subject matter of this Agreement; provided, to the extent we have negotiated a separate commercial agreement with you (the “Master SaaS Agreement”), this Agreement does not supersede the terms and conditions of such Master SaaS Agreement.  In the event of a conflict between the terms of this Agreement and any Master SaaS Agreement, the terms of the Master SaaS Agreement shall prevail. If you are located in the United States, this Agreement is made in accordance with and is subject to the laws of Delaware, and you irrevocably agree to submit all disputes in connection with this Agreement to the applicable courts in Delaware.  If you are located in any other jurisdiction, this Agreement is made in accordance with, and is subject to, the laws of Victoria, Australia, and you irrevocably agree to submit all disputes arising in connection with this Agreement to the jurisdiction of the Victoria, Australia courts.