End User Licence and Hosting Agreement (EULAHA)
Operative Part
Actualisation Group Pty Ltd ACN 609280079 (Actualisation) operates the Actualisation platforms (Program) and provides access to End Users on the Terms and Conditions of this End User Licence and Hosting Agreement (EULAHA).
The End User would like to use the selected Packages of the Program to manage and host its Website. Actualisation and the End User are referred to as a Party or the Parties to this EULAHA as the case may be.
The terms and conditions contained in this EULAHA govern the relationship between the Parties.
1. Definitions that apply to this EULAHA
1.1 Defined terms
Agreement means the Terms and Conditions contained in this End User Licence and Hosting Agreement (EULAHA).
Content means text, data, speech, music or other sounds, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth).
Designated Agent means the person appointed by the Site owner to respond to allegations of Copyright breaches of Content that appears on the Website.
Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Program provided by Actualisation as updated from time to time on its Website.
Hosting means the provision of a virtual host for the End User to serve data of its website using the Program provided by Actualisation.
End User means a person that purchases a Licence to use the Program and the Hosting Account pursuant to the terms and conditions of this Licence Agreement.
Excessive Use Site means an End Users Website that is consuming more usage (including but not limited to bandwidth, disk, e-mail accounts, e-mail sends or CPU utilisation) as classified at the sole discretion of Actualisation in accordance with the limits provided.
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.
EULAHA means this End User Licence and Hosting Agreement.
Intellectual Property Rights (IP) means all copyright, patents, design rights, trademarks and service marks and Programs for any of the foregoing, together with all trade secrets, know-how, database rights, rights to confidentiality, intellectual and industrial property rights and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration in all parts of the world.
Licence Fee means the amount of money paid on acceptance of this Agreement by an End User in exchange for the right to use the Program and the Hosting services for the Licence Term.
Licence Term means the period(s) during which the End User is licenced to use the Program for the selected Package.
Packages means any of the packages available with the Program.
Program means the Link. and Edge management systems used as a software solution to enable users to track and monitor assets.
Actualisation’s Website means the website that the End User may be able to access Documentation from as the case may be located at http://www.actualisation.com
Upgrades means any modifications, new or revised versions of the source code that the Program requires to operate more efficiently or effectively as determined by Actualisation at its sole discretion.
End User's Website means the End User’s website which uses one installation of the Program hosted on Actualisation’s servers.
Works means the source code embedded in the software that contains all algorithms, source code, and system logic relating to the Program that is subject to this End User Licence and Hosting Agreement.
1.2 Interpretation
Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a Party includes the Party’s executors, administrators, successors and permitted assigns;
(e) to an amount of money, to $, $A or dollar is a reference to the currency of Australia;
(f) a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
(i) that Statutory Provision as amended or re-enacted from time to time; and
(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision.
(g) including and similar expressions are not words of limitation.
(h) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(i) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.
(j) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
2. Licence to use the Program
2.1 Limited Licence
Actualisation grants the End User a non-exclusive, non-transferable, limited Licence to use the Program combined with the Hosting for the Term in exchange for the Licence Fee paid by the End User. The End User agrees that:
(a) only one End-User's Website per Licence to use the Program is to be used on Actualisation’s Servers;
(b) any Documentation that may or may not be provided (as the case may be) with the Program must only for the purpose of which it is provided.
2.2 Ownership of the Program
(a) Actualisation retains all right, title and interest in and to all Intellectual Property in the Works embodied in the Program.
(b) End Users acknowledge that they do not acquire any Intellectual Property Rights, either express or implied in the Program or the Hosting and the Documentation beyond the terms contained in this EULAHA.
2.3 Ownership and Control of Data
(a) Actualisation acknowledges that it does not own the data uploaded to its Servers by End Users.
(b) End Users acknowledge that if Actualisation is notified that any information appearing on an End User's Website represents a breach of copyright or other intellectual property infringement, then Actualisation may, at its sole elect to remove and take the End User's Website offline and immediately remove the infringing material without notice to the End User.
2.4 Payment
End Users agree to pay Licence Fee applicable to the Packages they have selected for the Licence Term in advance by credit card, direct debit or invoice. End Users agree to pay for all excess data charges as per the contract and any other charges as described at Actualisation’s Website.
Any such excess data charges will be billed to the End Users nominated payment method at the end of each Licence Term.
2.4.1 Prepaid Data Egress and Support Fee
In the event of contract termination or upon the Client's request for data extraction, the Client shall incur a fee covering Data Egress and Support Costs. This fee must be paid in full before the commencement of any data transfer or copying services. The fee compensates for the resources and assistance required to transfer or copy the client's data out of our systems. Detailed cost breakdowns and payment instructions will be provided at the time of service request.
3. Service levels
3.1 Support obligations
Provided that the Program functions and is fit for purpose, Actualisation has no obligation to provide support, maintenance, upgrades, modifications or new releases of the Program.
Actualisation will ensure that the Program performs according to the Service Levels.
Without limiting this Actualisation will, to the extent required by this Agreement:
(a) provide such support as is necessary to ensure the Program performs in accordance with the Service Levels;
(b) provide the End User with a backup of its End User's data on request;
(c) consult as necessary with the End User in order to provide such information relevant to the Program as the End User reasonably requires concerning the current performance of the Program;
(d) cooperate with any service review procedures reasonably implemented by the End User as described in the schedule; and
(e) implement such recommendations as may reasonably be required in order to ensure the Services continue to comply with the requirements of this agreement.
3.2 Responsibility for Viruses
Actualisation will use reasonable endeavours to ensure that no viruses or similar programming faults are coded or introduced into the system as a direct result of the provision of the Services or as the direct result of an act or omission of it’s Officers or Agents.
4. Specific prohibitions on Use of the Program
End Users agree that they must not:
(a) use the Program for any purpose or in any manner other than as provided in this EULAHA;
(b) use the Program in any way that could damage the reputation of Actualisation or the goodwill or other rights enjoyed by Actualisation;
(c) permit any third party to obtain access to the Program;
(d) reproduce, make error corrections to or otherwise modify or adapt the Works as provided in the Program or create any derivative works based on the Program;
(e) de-compile, disassemble, decrypt, or otherwise reverse engineer the Program or permit any third party to do so; or
(f) transfer, sublicence, rent, lease or lend the Program or use it for commercial time sharing or service bureau use;
(g) modify or remove any copyright or proprietary notices associated with the Program;
(h) cause email to be sent using the Program that is not compliant with the Spam Act 2003 (Cth). Any such emails must include a functioning email unsubscribe facility; and
(i) comply with all local laws in using the Program in their jurisdiction.
5. Actualisation take down procedure for End Users Infringing Content
Actualisation does not monitor Content uploaded to its Servers by End Users using the Program. Actualisation commits to removing all Content as soon as practical after being notified that Content may be a breach of copyright or other Intellectual Property rights, is defamatory or otherwise claimed to be illegal.
End Users consent to Actualisation using the takedown procedure which is provided on Actualisation's Website, should it be notified of a breach of Copyright or other Intellectual Property Rights in relation to Content uploaded to its Servers by an End Users.
6. Warranty disclaimer
(a) To the fullest extent permissible by law, the Program and the Documentation are provided to the End User without any representations or warranties. End Users agree to use the Program and the Hosting services at their sole risk.
(b) Nothing in this EULAHA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances, each a non-excludable provision.
(c) Subject to Actualisation’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, Actualisation expressly disclaims all warranties of any kind with respect to the Program and the Hosting Services, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
6.2 Limitation of liability
Subject to Actualisation’s compliance with the non-excludable provisions and to the fullest extent permissible by law, Actualisation is not liable (whether in Contract or Tort) for anything the End User does to a third party as a result of using the Program:
(a) for any inability to access to data the End User's Website;
(b) for loss or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption of the like regardless of whether the loss is direct or indirectly caused by use of the Program.
(c) for any indirect, incidental, punitive, special, or consequential loss or damage whatsoever, in each case, arising out of the use or inability to use the Program or Documentation, even if Actualisation has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of Actualisation under the Non-excludable Provisions and to the fullest extent permissible by law, in no event will Actualisation's liability for all damages exceed the amounts actually paid by End Users to Actualisation for the Program.
(d) To the fullest extent permitted by law, the liability of Actualisation for a breach of a non-excludable condition is limited to:
(i) in the case of the supply of goods:
I. replacement of the goods;
II. supply of equivalent goods;
III. repair of the goods;
IV. payment of the cost of replacing the goods or of acquiring equivalent goods; or
V. the payment of the cost of having the goods repaired.
(ii) in the case of the provision of services:
I. the supplying of the services again; or
II. payment of the cost of having the services supplied again.
(e) Notwithstanding this clause 6.2 or anything else contained in this EULAHA, neither Party's liability for death or personal injury resulting from its own negligence will be limited.
6.3 Indemnity
End Users indemnify, defend and hold harmless Actualisation in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
(a) any breach of this Agreement
(b) End Users negligent acts or omissions;
(c) The accuracy of the captured data, the quality of GPS tracking history, network coverage issues, satellite coverage issues, missing history data, artificial intelligence failing to coach/alert machine operators or field teams or office teams, incorrect or inaccurate GPS navigation routing; or
(d) End Users use of the Program, including any third party claims made in connection with, or arising out of, your use of the Program and Documentation.
7. Termination
7.1 Termination by Actualisation
(a) Actualisation can terminate this Agreement without notice if:
(i) it no longer has the right to provide the Program or provide the Hosting service to End Users for any reason whatsoever;
(iii) the Licence from Actualisation is terminated for any reason;
(iv) the End Users Account’s nominated credit card or direct debit account is unable to be charged the Licence Fee on two successive attempts.
(v) the End User commits a breach of any of the material terms and conditions of this Agreement.
7.2 Termination for non-payment
Actualisation may terminate this EULAHA at any time for non-payment if the Licence Fee is not paid within fourteen (14) days of the End Users credit card or bank account failing to be debited by Actualisation.
7.3 Termination by End User
The End User may terminate this Agreement by providing thirty (30) days notice in writing to Actualisation.
7.4 Effect of Termination
(a) If this EULAHA is terminated for any reason whatsoever, then Actualisation may on the provision of a reasonable period of notice, remove the End User's Website after providing the End User with the opportunity of migrating its data.
(b) Although export and backup mechanisms exist in the Software, the End User ’s Content is stored on the server using a proprietary system and so consequently no guarantees are given that the End User ’s Content can be migrated to any other system.
8. Terms and conditions of Hosting
8.1 Third Party Programs
Actualisation may at its sole discretion allow the End User to run third-party Programs on its server. Each Program to run a third-party Program will be considered on a case-by-case basis and an extra charge may be incurred based on system resources used and any operational maintenance needed. No support for third-party Programs will be provided unless otherwise agreed by both parties in writing.
8.2 Technical support
Actualisation does not provide technical support on non-server issues. Actualisation will not respond to emails pertaining to such requests. This includes but is not limited to, all 3rd party software, PHP, Java, CGI, scripts, Real Audio/Video, HTML, MySQL, Telnet, FTP, and Email clients.
8.3 Excessive Use
Any End User's Website that is deemed as impairing the performance of Actualisation’s servers either by high storage utilisation, high bandwidth usage, or high CPU usage will be deemed to be an Excessive Use Site. Excessive Use Sites are classified at the sole discretion of Actualisation.
8.4 Data
(a) All the End User’s files, information and mail stored on Actualisation’s servers will be preserved for 14 days from the date of default. If full payment is not received within 14 days of default, all the End User’s files, information and mail stored on the Actualisation’s servers may be deleted.
(b) If the End User wishes to use the service again, the End User must re-apply as a new End User.
8.5 Consent to the provision of information to third Parties
End Users acknowledge that:
(a) their personal information may be provided to third parties in order for the Program to operate effectively.
(b) information about them may be sent between countries to other entities that Actualisation has commercial contracts with.
(c) Any information provided to third parties or sent offshore will be confidential and all reasonable efforts to keep the data confidential will be made by Actualisation.
8.6 Backups
(a) Actualisation will make backup copies of the End Users’ data daily. Actualisation will retain backup copies for a minimum period of seven (7) days.
(b) If the End Users stored data is lost or altered, the End User will bear the direct and indirect costs of restoring the data.
8.7 Permitted Down Times
Actualisation may suspend or interrupt End Users access to the Program and the Hosting services, and will not be liable to any extent if:
(a) it provides reasonable notice of not less than five (5) days to End Users of a period of outage, which must be scheduled to create minimal interference with End Users' Websites.
(b) the suspension or interruption is caused by any act or omission of the End User or the (including where a circuit breaker is activated);
(c) the suspension or interruption is caused by any act or omission of any third party, or any event, which is out of the reasonable control of the Company including any ISP or local problems (such as Browser or DNS caching), DoS, DDoS attacks, exploits or hacking;
(d) Actualisation is prevented from reinstating the Services due to any act or omission of the End Users Representatives or any third party whom is out of the reasonable control of Actualisation;
(e) the interruption continues for five (5) minutes or less in any calendar month period;
(f) the suspension or interruption is an agreed period of shut-down or outage;
(g) the interruption is due to any requirement of any Authority or Government Body with jurisdiction over the EULAHA; or
(h) a period of shut-down, including any refusal, suspension or termination of the Supply, pursuant to and notified in accordance with, the terms of this Agreement.
Without limiting the generality of this clause and for the avoidance of doubt, this clause applies to interruptions to the Services caused by power, temperature and humidity control interruptions and failures.
8.8 Service Level
Actualisation will provide a service level of 99% network uptime per month excluding Permitted Down Times.
9. Miscellaneous provisions
9.1 Assignment
Actualisation may assign this Agreement by notifying the End User of the Assignment. The End User cannot assign the terms and conditions contained in this Agreement without the express consent of Actualisation.
9.2 Amendments
This Agreement may only be altered in writing and signed by each Party. Writing in this case includes electronic mail sent by an authorised Officer of Actualisation.
9.3 Entire Agreement
This Agreement contains the entire Agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties.
9.4 Governing law and jurisdiction
This Agreement is governed by the law applicable in the State of Queensland, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Queensland, Australia.
9.5 Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights from Actualisation to the End User.
9.6 Severability
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.
9.7 Survival
The following clauses survive termination of this Agreement clauses 4, 6, 9.4, 9.5 and 9.7 survive termination of this Agreement.
Acceptance
By using the Program the End User agrees to the terms and conditions contained in this EULAHA.