End User License Agreement
Effective: 18th December 2017
This End User License Agreement (the “EULA”) constitutes an Agreement between you (the “Licensee”) and AML Accelerate Pty Ltd (“AMLA” or the “Licensor”) of Level 4 (Stone & Chalk), 11-17 York Street, Sydney, NSW 2000 Australia with respect to the Licensees’ use of the AML Accelerate software (“The Software”) based on the terms and conditions outlined below.
Prior to using the Software, you are required to confirm that you have read, understood and agree to be bound by the terms outlined in the following End User Licence Agreement.
1. The License
In exchange for the Licensee paying the Fees, the Licensor grants to the Licensee a non-exclusive, non-transferable licence to use the Software for the Permitted Purpose.
This Agreement starts on the Start Date and will continue for 12 months, unless terminated earlier in accordance with clause 17. At the end of the term, the licensee may renew the term for another 12 months.
3. Fees and Payment
- For single license purchases, the Licensee will pay the Licensor the Fee via the Licensor’s Website (amlaccelerate.com).
- For multi-license purchases, the licensee will pay the licensor the Fee via electronic transfer within the terms of the invoiced payment.
- If, during the Term, the Licensee:
- requires to increase the number of Registered Users and/or Licences granted to it under this Agreement, it will pay the additional licence fee specified in the Software for the Additional Users.
- The Fee is specified on the Licensor’s website (www.amlaccelerate.com) or as agreed in writing between the Licensor and the Licensee.
- GST will be applied where applicable as per the GST Act.
4. Delivery of the Software
- Upon payment of the relevant Fee, the Licensor will deliver the Software to the Licensee.
- Delivery of the Software occurs when the Licensor has either:
- once an account is established and the Licensee or any of its Registered Users, is provided with access to that account; or
- in the case of Additional Users, when the above occurs with respect to those additional licences granted.
5. Public Cloud Deployment
- The Licensor will provide the Software to the Licensee as a Hosted Version. The Licensor’s Software is hosted with Microsoft Azure in the data centre in Sydney, Australia and the Licensee will also be bound by its service terms, which can be found at https://azure.microsoft.com.
- The Licensor may from time to time during the Term update and carry out scheduled maintenance of the web-based user interface and may have to suspend access to, or functionality of the interface from time to time.
- If the Licensor needs to carry out any emergency maintenance, the Licensor will endeavour to notify the Licensee as soon as is practicable.
- The Licensor will use reasonable endeavours to, as soon as is reasonably possible, notify the Licensee of any breaches in security or unauthorised or suspicious access to the Hosted Version indicating that an individual has damaged the Hosted Version or gained unauthorised access to the Hosted Version in a way that has adversely affected the Licensee’s information, including any corruption, loss or mis-transmission of data, or any breach of data security during transmission and storage. In the event of any such security breach (of which the Licensor is aware), the Licensor will perform a root cause analysis to identify the cause of such security breach and will, on an expedited basis, provide to the Licensee a report detailing the cause of such a security breach.
- The Licensee acknowledges and agrees the Licensor may suspend the Licensee’s use of the Hosted Version if, in the Licensor’s sole opinion, it is reasonably required to prevent unauthorised access to the Software.
6. Registered Users
- The Licensee may nominate any of its employees and contractors to be a Registered User or Additional User of the Software by submitting the request online via the Software.
- The Licensee:
- will ensure that its Registered Users are aware of, and comply with, the terms and conditions of this Agreement;
- is responsible and liable for all activity that occurs under an account assigned to the Licensee and all acts and omissions of a Licensee’s Registered User irrespective of whether they are an employee of the Licensee or not;
- will ensure that if a Registered User leaves the employ of the Licensee, or the Agreement under which they provide services to the Licensee is terminated, that their access to the Software is terminated;
- will notify the Licensor of any actual breach of this Agreement by any of its Registered Users within 2 business days of the Licensee becoming aware of the actual breach; and
7. Provision of Services by Licensor
- The Licensor agrees to use reasonable commercial endeavours to provide the following support services for the Software during the Term:
- any updates based on legislative changes;
- corrections to material issues that the Licensee is able to reproduce and/or diagnose;
- enhancements to the Software that the Licensor elects to incorporate into and make a part of the Software that are not separately marketed; and
- reasonable online support.
- Support services to be provided by the Licensor will not (unless otherwise agreed with the Licensor) include support of or for:
- Software not properly used; or
- support required because of a failure to undertake training or follow instructions provided by the Licensor.
8. Licensee’s Obligations
- The Licensee will not use the Software, or let it be used:
- for any purpose other than the Permitted Purpose;
- in a manner which may be prejudicial to the Licensor, its goodwill, reputation or business;
- to commit any offence or breach any Law;
- in a manner that is excessive or unusual or creates an unfair burden on the provision of the Software to others (as judged in the Licensor’s reasonable discretion);
- in a way that interferes (or threatens to interfere) with the efficiency and security of the Software;
- to distribute material that is defamatory, obscene or could cause offence or harm; or
- in a manner that infringes any other person’s Intellectual Property Rights, Confidential Information or other rights.
- The Licensee agrees:
- to only use the Software in accordance with the terms of this Agreement;
- to comply with any reasonable direction of the Licensor in respect of the Software;
- to not withhold any information or materials which could reasonably impact the Licensor’s performance of its obligations under this Agreement;
- it will not, directly or indirectly, modify the features or functionality of, copy, analyse or remove components from, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Software or permit, allow, encourage or induce any third party to do so;
- it will not create derivative works based on the Software; and
- it will not distribute or upload any trojan horse, worm, malicious or destructive code or any instruction activating such code or do anything which will or might reasonably adversely affect the Software.
9. Representations and Warranties
- The Licensor represents and warrants that:
- it has the legal right and authority to enter into and perform its obligations under this Agreement; and
- the Software does not infringe any Intellectual Property Rights of third persons, to the best of the Licensor’s knowledge.
10. Liability and indemnity
- To the extent permitted by Law, the Licensor will not be liable or responsible to the Licensee for any liability whatsoever with respect to the Software or arising out of or in connection with this Agreement, including but not limited to any loss suffered as a result of the Licensee’s use and/or reliance on the information contained within the Software.
- The Licensor’s liability for breach of a statutory guarantee which cannot be excluded by law is limited, at the Licensor’s option, to either the repair of the Software, replacement of the Software (or equivalent) or the payment of the cost of having the Software repaired or replaced.
- The Licensor will not be liable for any loss, which arises as a result of Licensor relying on any false, misleading or incomplete information.
- The Licensor will not be liable for any delay or non-performance of our obligations if it is caused by the Licensee, a Third-Party Supplier or a Force Majeure Event.
- To the extent permitted by law, the Licensor’s aggregate liability in connection with this Agreement, which cannot be excluded will not exceed the Fees paid by the Licensee under this Agreement in the 30 days preceding the date of the claim.
- The Licensor will not, in any circumstances, have any liability for any losses or damages which may be suffered by the Licensee, and/or any Affiliate of the Licensee (or any person claiming under or through the same), whether the same are suffered directly or indirectly or are immediate or consequential, including, without limitation: special damage even though that party was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity and management time; loss of goodwill.
- The Licensee will indemnify the Licensor and its Affiliates and agents from and against any and all claims, damages, losses, liabilities or fees arising in connection with the use of the Software, including but not limited to, any costs incurred as a result of a breach of any term of this Agreement by the Licensee.
11. Intellectual Property Rights
- The Licensor owns all rights (including Intellectual Property Rights), title and interest in the Software and Documentation, including all Improvements.
- The licence granted by this Agreement does not transfer, assign or alter any Intellectual Property Rights in the Software.
- Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure.
- Any performance information relating to the Software shall be deemed Confidential Information of the Licensor without any marking or further designation. Except as expressly authorised herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
- The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
- (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
- (ii) is or has become public knowledge through no fault of the Receiving Party;
- (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
- (iv) is independently developed by employees of the Receiving Party who had no access to such information.
- The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
- The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of the Software.
13. Data Security
- The Licensor has taken reasonable measures to provide a secure environment for receipt and transmission of information. However, since use of the Hosted Version depends, in part, on Third Party Suppliers (e.g. telecommunications carriers, data warehouse providers) whose performance is outside of the Licensor’s control, the Licensor disclaims all liability for damages arising from the failure of the Hosted Version due to such third parties’ performance.
- The Licensor is not liable for damages arising from the disclosure or dissemination of information during transmission to or from the Hosted Version. Notwithstanding anything to the contrary express or implied, the Licensor will have no responsibility for delays or errors related to the Hosted Version caused by systems or components outside of the Licensor’s network, including but not limited to your hardware, software and/or networking systems, telecommunications systems, Internet access, telephone access lines and telephone and communications equipment.
- Each party will comply with the Privacy Laws applicable to such party’s performance of its obligations under this Agreement.
15. Being named as a client of the Licensor
- The Licensee consents to the Licensor using the Licensee’s company name and reproducing the Licensee’s corporate logo on its corporate website and/or in promotional material for the Software, provided such use is only to indicate that the Licensee is or was a customer of the Licensor.
16. Dispute Resolution
- Before a party seeks any external dispute resolution in relation to a dispute arising in connection with this Agreement, it will, use reasonable endeavours to resolve the dispute with the other party prior to commencing proceedings.
- If the parties are not able to resolve a dispute in accordance with clause 1 within 30 Business Days, the parties will endeavour to resolve the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
- The mediation will be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) that are in operation at the time that the dispute is referred to the ACDC.
- The Guidelines set out the procedures to be adopted, the process for selection of the mediator and the costs involved.
- The terms of the Guidelines are hereby deemed incorporated into this Agreement.
- Despite the existence of a dispute between the parties with respect to this Agreement, each party will continue to comply with its obligations under this Agreement.
- Nothing in this clause 16 prevents a party from commencing proceedings for interlocutory relief.
- This clause will survive termination of this Agreement for 6 months.
- The agreement will automatically terminate at the end of the term unless the licensee renews the term for a further 12 months. The licensee may terminate the agreement with 45 days written notice. In terminating this Agreement, the licensee is not entitled to a refund of any fees unless the Licensor has breached the terms of this Agreement.
- The Licensor may terminate this Agreement by giving 45 days’ written notice to the Licensee. The Licensor, in its sole discretion (acting reasonably), will determine whether any prepaid Fees will be refunded to the Licensee.
- Upon the termination of this Agreement for any reason, the Licensee will pay all outstanding Fees and any reasonable costs incurred by the Licensor as a result of the termination (including third party cancellation fees and administrative costs).Without limiting any remedies available to Licensor under this Agreement or at Law, the Licensor may, in its sole discretion, immediately suspend access to and use of the Software and/or terminate this Agreement with immediate effect by written notice to the Licensee if:
- there is a change of circumstances beyond the Licensor’s control which prevents the Licensor from providing the Software to the Licensee;
- the Licensee fails to remedy a breach within 7 days of a notice from Licensor requesting the Licensee to do so; or
- the Fees are outstanding for more than 7 days past the due date.
- If either party becomes or is declared insolvent, bankrupt or has an administrator appointed, the other party may, by giving written notice thereof, immediately suspend all performance hereunder and/or terminate this Agreement as of the date specified in the notice. In the event of termination due to the Licensee’s insolvency, the Licensor will be entitled to make a claim in respect of the balance of any unpaid Fees for the Term.
18. Force Majeure
- If a delay or failure of a party to perform its obligations is caused by, or anticipated because of a Force Majeure Event, the performance of that party’s obligations will be suspended.
- If a delay or failure by a party to perform its obligations because of a Force Majeure Event exceeds 60 days, either party may immediately terminate this Agreement by giving written notice to the other party.
19. Assignment and Subcontracting
- The Licensor may subcontract or assign its rights or obligations under this Agreement to a third party.
- The Licensee will not assign, transfer or subcontract any rights, obligations or liabilities under this Agreement to any other person, except with written consent from the Licensor, such consent can be withheld in the Licensor’s sole discretion.
20. General Terms
- The relationship between the Licensor and the Licensee will be that of a service provider and customer. Nothing in this Agreement will create an agency, partnership or joint venture between the parties and nothing in this Agreement gives one party the authority to enter into any agreement, or to make any representation or warranty, on behalf of the other party or otherwise bind the other party in any way. No party will, in any circumstances, hold itself out to have such authority without a specific power of attorney from the other party for the relevant purpose.
- This Agreement, including any Schedules to this Agreement, contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
- If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
- This Agreement is governed by, and construed in accordance with the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
- This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will be deemed to be one and the same agreement. Online acceptance or a signed copy of this Agreement, including a PDF copy, delivered by facsimile, email or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- In this Agreement:
- Additional User means a person who has been nominated by the Licensee during the Term pursuant to clause 6.
- Affiliates means related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth), and Affiliate has a corresponding meaning.
- Agreement means this Licence Agreement.
- CEIP Information means information arising from or as a result of the Licensee’s use of the Software and/or Services including but not limited to:
- Configuration Data – Technical data about how the Licensee has configured and uses the Software and related environment information such as technical data relating to the devices used to access the Software;
- Feature Usage Data – data about how the Licensee uses the Software, including how the features and functionality are used (or not used as the case may be) and any customisation, additional features or changes requested by the Licensee;
- Performance Data – data about the performance of the Software including response times for user interfaces, links and functionality; and
- Input Data – data and information entered into the Software by the Licensee.
- Computer means a single server, workstation or terminal within the Licensee’s IT Infrastructure.
- Confidential Information means any information communicated by either party to the other party in the context of their business relationship (whether documented now or in the future or otherwise) and includes:
- Personal Information;
- proprietary or trade secret information, including, without limitation, the identity of the Licensor’s data sources and vendors, and similar information which is identified as confidential by the disclosing party, or ought to have been known to be confidential,
- the Software and information regarding the Software, but does not include information which is in, or comes into, the public domain other than by a breach of this Agreement, or which is independently known to the other party as evidenced by its written record.
- Documentation means any documentation provided to the Licensee by Licensor under the terms of this Agreement in relation to the Software.
- Fee/Fees mean the fees payable by the Licensee.
- Force Majeure Event means any act, event or cause, including earthquakes, cyclones, floods, fires, lightning, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery or industrial conditions or arising out of any other unexpected and exceptional cause, and dispositions or orders of governmental authority which is beyond the reasonable control of that party.
- Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
- GST means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth of Australia.
- GST Act means the A New Tax System (Goods and Services Tax) Act 1999, as amended from time to time.
- Hosted Version means the version of the Software to which the Licensee is granted certain access and usage rights, which is installed on and accessed from Third Party Supplier’s computer systems via the Internet.
- Improvements means any developments, improvements, enhancements, upgrades, new functionality, new releases, changes, alterations, innovations, extensions, advances, adaptations of existing works or additions of any nature made to the Software and, where relevant, Documentation (howsoever arising).
- Initial Term means 12 months.
- Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor and circuit layout rights, or other intellectual property rights, whenever created and includes any rights to registration of such rights.
- Law means any statute, law, regulation, ordinance, rule, judgment, order, decree, by-law, approval, resolution, order, directive, guideline, policy or other similar form of decision of, or determination by, or any interpretation or adjudication, in each case, by any concerned Government Agency having jurisdiction over the matter in question in Australia (as amended or replaced from time to time) as may be applicable to the Software or the subject matter of this Agreement and having the force of law.
- Licence means a licence to use the Software for the Term for the Permitted Purpose in accordance with this Agreement.
- Licensee’s IT Infrastructure means the computer hardware, software, network resources, framework, data centres, facilities, services and related equipment required for the existence, operation, testing and management of an enterprise IT environment by or for the Licensee.
- Permitted Purpose means the purpose for which the Software if designed.
- Personal Information means such information or an opinion (including information or an opinion forming part of a database) whether true or not and whether in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion (or such other meaning that may be given to the term in the Privacy Act).
- Privacy Laws means Privacy Act (1988) (Cth), and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.
- Registered User means a person who has been nominated by the Licensee pursuant to clause 6.
- Software means the AML Accelerate software, including the computer program or data in executable code form, together with any technical information and documentation necessary for the use of the program or data, including any source code, object code, updates, adaptations, modifications, new releases and new versions developed by the Licensor from time to time.
- Start Date means the date the Software was purchased and the license was automatically granted, or the date at which the access to the Software was granted by the Licensor.
- Term means the Initial Term and any renewal term.
- Third Party Supplier means a supplier that is unrelated to the Licensor that supplies goods and/or services to or on behalf of the Licensor, and includes the hosting provider that owns and/or operates the cloud computing platform, system and infrastructure that is utilised for the Hosted Version.
- Website means the website located at http://www.amlaccelerate.com/ and http://www.arctic-intelligence.com