End User Licence Agreement
Inspiretek Licence Agreement
Agreed terms
1 Agreement
Your relationship with us
1.1 This Agreement sets out the terms on which Inspiretek Pty Ltd (Inspiretek/we/us) allow you to access and use the Inspiretek Solution. For the purposes of this Agreement, “you” and “your” means you as the customer specified in the Order.
1.2 By signing this Agreement, accepting an Order, or accessing and using the Inspiretek Solution, you agree to comply with, and to be bound by, this Agreement.
1.3 If you do not agree to this Agreement, you must not access or use the Inspiretek Solution.
Entire agreement
1.4 To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.
1.5 This Agreement contains the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in this Agreement.
2 Orders and Fees
2.1 You may request the Inspiretek Solution by submitting an enquiry on the Inspiretek website.
2.2 We will generate and send you an order which will include the following details:
(a) your Chosen Subscription Period;
(b) applicable Fees; and
(c) any other relevant details, terms or conditions,
(Order).
2.3 The terms of the Order are incorporated into, and form part of, this Agreement.
2.4 If you wish to accept the Order, you will need to provide your credit card details for payment of the Fees.
2.5 You must pay the Fees as specified in the Order. If you fail to pay the Fees as specified in the Order, we may suspend your access and the access of your Authorised Users and End Users to the Inspiretek Solution until the outstanding Fees are paid, without limiting any of our other rights and remedies.
2.6 All Fees are non-refundable unless otherwise expressly set out in this Agreement.
3 Registration
3.1 Registration of a User Account requires you to enter your name, contact details and any other information requested in the relevant registration form.
3.2 Addition of an Authorised User requires you to enter the name and contact details of that Authorised User. You must ensure that you have the appropriate consents and authorisation to disclose an Authorised User’s Personal Information.
3.3 You are responsible for all acts and omissions of your Authorised Users as if they were your own, and must ensure that all Authorised Users comply with this Agreement and the Inspiretek Solution Terms of Use.
3.4 If you register on behalf of a company, you represent and warrant that you are authorised to bind the company to this Agreement.
4 Licence
4.1 From the date you accept the Order, we grant you and your Authorised Users a non exclusive, non transferable licence for the Term to:
(a) access and use the Inspiretek Solution in accordance with this Agreement;
(b) add Authorised Users and set usage permissions; and
(c) access and use any other function of the Inspiretek Solution which we make available to you from time to time.
4.2 For clarity, the licence granted under clause 4.1 does not allow you to sublicense the Inspiretek Solution to third parties.
4.3 We reserve the right to revoke this licence and delete your User Account at any time for any reason.
4.4 You must not transfer your User Account to any other person without our written permission.
5 Your use of the Inspiretek Solution
Acknowledgment
5.1 You acknowledge and agree that:
(a) an internet connection is required to access the Inspiretek Solution and that charges may apply;
(b) you are responsible for controlling the information that is made available by way of the Inspiretek Solution;
(c) you are responsible for your username and password (including unauthorised use of them);
(d) we do not endorse or make any other representation about any user of the Inspiretek Solution, nor any product that appears in or is otherwise described or discussed in the Inspiretek Solution;
(e) while we undertake reasonable back ups of the Inspiretek Solution in accordance with our reasonable business processes, we do not provide back up services. It is your responsibility to ensure that you have appropriate procedures in place to back up all data uploaded to the Inspiretek Solution;
(f) we make reasonable efforts to maintain the security and confidentiality of the Inspiretek Solution but we cannot ensure or guarantee its safety. For example, hacking, vandalism, hardware or software failure may affect the security and confidentiality of the Inspiretek Solution, and we take no responsibility for such events where we have neither caused nor significantly contributed to their occurrence; and
(g) you have exercised your own judgement as to the suitability of the Inspiretek Solution for your purposes, and that you use the Inspiretek Solution at your sole risk.
(h) we may alter the features and functionality of the Inspiretek Solution at any time without consultation with you. If any alteration results in a material change to the Inspiretek Solution which is detrimental to your use of the Inspiretek Solution in accordance with this Agreement, you may choose to terminate this Agreement on written notice to us.
5.2 If you become aware of unauthorised use of your username and password (or other security breach), then you agree to inform us immediately.
5.3 Subject to clause 11.6, you agree that:
(a) the Inspiretek Solution may contain errors and may not be available from time to time; and
(b) Inspiretek excludes any warranty or representation not expressly set out in this Agreement, and specifically makes no representation and gives no warranty that use of the Inspiretek Solution will:
(i) not infringe the Intellectual Property Rights or other rights of any third party; and
(ii) be free from defects, fit for any particular purpose or function in any specified manner.
Your conduct
5.4 You may only use the Inspiretek Solution if you are aged 18 years or over, or if you are under 18 years of age only with the involvement and consent of a parent or legal guardian. You must not use the Inspiretek Solution in any jurisdiction where it is unlawful for you to do so.
5.5 You must:
(a) follow our reasonable directions in connection with the access to and use of the Inspiretek Solution;
(b) use the Inspiretek Solution in accordance with all applicable laws, including the Privacy Laws; and
(c) only use the Inspiretek Solution in accordance with this Agreement.
5.6 You must not use the Inspiretek Solution:
(a) to engage in unlawful or fraudulent behaviour;
(b) to defame, menace or harass any third party;
(c) to circumvent any security measures;
(d) to distribute, view or create any material that:
(i) is or may be defamatory, offensive, obscene, illegal or unlawful; or
(ii) infringes any third party’s Intellectual Property Rights;
(e) through act or omission, to mislead or deceive others; or
(f) in any other manner that we consider to be unacceptable.
5.7 If we make available to you any feature or functionality that allows you to store, distribute, provide, or otherwise transmit information, data or material through the Inspiretek Solution, you must not use such features or functionality for the purposes of accessing, storing, distributing, providing (including to us) or otherwise transmitting any information, data, material or content that:
(a) infringes the Intellectual Property Rights of any third party;
(b) is unlawful, misleading, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(c) promotes unlawful violence;
(d) depicts sexually explicit images; or
(e) is discriminatory or promotes discrimination based on race, gender, colour, religious belief, sexual orientation or disability.
5.8 We reserve the right to remove from the Inspiretek Solution any of your information, data or material that we consider to be inappropriate or otherwise in breach of clause 5.6 or 5.7.
End Users
5.9 You are responsible for understanding the settings and controls for the Inspiretek Solution and for controlling who you allow to become an End User.
5.10 You are responsible for ensuring that:
(a) all End Users agree to comply with the Inspiretek Solution Terms of Use; and
(b) for those End Users who are minors, they have the consent of their parent or legal guardian to access and use the Inspiretek Solution (including in accordance with the Inspiretek Solution Terms of Use).
Suspension
5.11 Without limiting any other remedy, we may suspend your access to the Inspiretek Solution if:
(a) we reasonably believe you are in breach of this Agreement; or
(b) a third party alleges that you have or have threatened to do any of the things described in clause 5.6 or 5.7.
Third party services
5.12 The Inspiretek Solution may also use social networking, a share functionality or may contain links to other sites that we do not own or control (third party sites). We have no control over, and assume no responsibility for, any share functionality or the content, privacy policies, or practices of any social media platform or third party site. Your use of any social media platforms or third party sites is subject to the particular site’s terms of use. You should review the terms of use of each social media platform or third party site before using any share functionality or third party site linked to the Inspiretek Solution. By using the Inspiretek Solution, you release Inspiretek from any and all liability arising from your use of any share functionality or third party site accessed from the Inspiretek Solution. You also understand that any information you communicate via a share functionality or third party site may become publicly available and that Inspiretek is not responsible for the conduct of others who may view, collect and use this information.
No assignment
5.13 Inspiretek Material remains our property.
5.14 We own, and do not assign to or create for your benefit, any Intellectual Property Rights (including future Intellectual Property Rights):
(a) in the Inspiretek Solution;
(b) in Inspiretek Material; or
(c) otherwise created by Inspiretek in the delivery of the Inspiretek Solution.
Licence of Your Material
5.15 We obtain no ownership rights in respect of Your Material, however you grant to Inspiretek a non exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in Your Material even after termination of this Agreement, including to use, store and modify Your Material.
5.16 The licence granted under clause 5.15 includes the right to sublicense to third parties.
No use of Inspiretek’s marks
5.17 You must not use the trade marks or logos of Inspiretek except with our prior written consent.
Infringement
5.18 You agree not to:
(a) decompile, disassemble or reverse engineer the Inspiretek Solution (or any part of it);
(b) use the Inspiretek Solution other than as expressly permitted under this Agreement;
(c) modify the Inspiretek Solution; or
(d) merge all or any part of the Inspiretek Solution with any other solution or app.
6 Your warranties
6.1 You warrant that you will act in good faith in your dealings with other users of the Inspiretek Solution.
6.2 By adding or uploading any Personal Information to the Inspiretek Solution, or otherwise providing to us Your Material or Third Party Material, you warrant that, and it is a condition of this Agreement that:
(a) you own or are the lawful licensee of the Intellectual Property Rights in Your Material; and
(b) you have all necessary consents, permissions, licences, regulatory approval or other authorities needed:
(i) to add or upload any Personal Information to the Inspiretek Solution;
(ii) to provide to us Your Material or Third Party Material; and
(iii) for us to use Your Materials and any Third Party Material as set out in this Agreement,
and that our use of the Personal Information, Your Materials and any Third Party Material as set out in this Agreement and our Privacy Policy (available on the website
) will not infringe the Intellectual Property Rights, privacy rights, or other rights of any third party or cause us to be in breach of any applicable law.
6.3 You acknowledge that you are responsible for your use of material that is made available by the Inspiretek Solution.
7 Term and termination
Term
7.1 Subject to clause 7.2, this Agreement commences when you accept the Order and continues for your Chosen Subscription Period, unless terminated earlier under this clause 7.
7.2 This Agreement will automatically renew for subsequent additional periods equal to your Chosen Subscription Period, unless either party provides the other party with written notice to terminate this Agreement before commencement of your next renewed Chosen Subscription Period. Where a party provides such notice to terminate, this Agreement will terminate on expiry of your then-current Chosen Subscription Period.
Termination on notice of new terms
7.3 We may amend the terms of this Agreement from time to time. We will notify you of any material changes to these terms via the Inspiretek Solution or by electronic communication.
7.4 The changes to the terms will take effect from the commencement of your next renewed Chosen Subscription Period, unless you provide us with written notice to terminate this Agreement before commencement of your next renewed Chosen Subscription Period. Where you provide such notice to terminate, this Agreement will terminate on expiry of your then-current Chosen Subscription Period. If you do not provide such notice to terminate, then you are taken to have accepted the changes.
Termination on alteration of features and functionality
7.5 If we alter the features and functionality of the Inspiretek Solution and it results in a material change the Inspiretek Solution which is detrimental to your use of the Inspiretek Solution in accordance with this Agreement, you may give us notice that you want to immediately terminate this Agreement. If you terminate this Agreement under this clause 7.5, we will provide you a pro rata refund of any Fees paid in advance for the period after the effective date of termination.
Termination for breach
7.6 Either party may immediately terminate this Agreement if:
(a) the other party commits a material breach of this Agreement and fails to remedy that breach within 30 days of receiving notice from the party requiring it to do so; or
(b) subject to applicable law, an Insolvency Event occurs in relation to the other party.
After termination
7.7 On termination of this Agreement:
(a) the licence granted under clause 4.1 is immediately revoked;
(b) we may immediately delete your User Account from the Inspiretek Solution; and
(c) we may delete or destroy Your Material.
Survival
7.8 Termination of this Agreement will not affect clauses 5.3, 5.15 to 5.18, 6, 7.7, 8, 9, 10, 11, 12 or any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination.
8 De-identified data
8.1 Despite any other clause in this Agreement, Inspiretek and its suppliers may use any data which is de-identified for any purpose.
9 Privacy
Use of Personal Information
9.1 We will collect and use your Personal Information and any Personal Information you upload or add to the Inspiretek Solution in accordance with our Privacy Policy.
Treatment of Personal Information
9.2 You must obtain consent from, and make any necessary disclosures to, all relevant individuals before disclosing their Personal Information to us under this Agreement, and otherwise comply in all respects with your obligations under the Privacy Laws.
9.3 You must give all assistance we require and comply with all directions we give from time to time in relation to our compliance with the Privacy Laws, or any investigation, request or enquiry (formal or otherwise) from the Privacy Commissioner regarding the Personal Information disclosed to Inspiretek under this Agreement.
9.4 You must notify us immediately if you become aware of any breach of clause 9.
10 Confidentiality
Recipient must keep Confidential Information confidential
10.1 Each party must keep confidential all Confidential Information and must not use Confidential Information for the purpose other than fulfilling its obligations and exercising its rights under this Agreement.
Disclosure exceptions
10.2 The obligations in clause 10.1 do not apply:
(a) to the extent necessary to enable a party to make any disclosure required by law;
(b) to the extent necessary to enable a party to perform its obligations under this Agreement;
(c) to any disclosure agreed in writing between the parties; or
(d) in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
11 Limitation of liability
Limitation
11.1 Subject to clauses 11.3 and 11.5 and to the extent permitted by law, Inspiretek’s liability for any loss or damage, however caused (whether in contract, statute, tort including by our negligence or otherwise), you suffer in connection with this Agreement is limited to the Fees paid by you to us under this Agreement in the 12 months before you first suffered the loss or damage.
11.2 The limitation set out in clause 11.1 is an aggregate limit for all claims, whenever made.
Consequential Loss
11.3 Subject to clause 11.6, we are not liable for any Consequential Loss however caused (whether in contract, statute, tort including by our negligence or otherwise), suffered or incurred by you in connection with this Agreement.
Seriousness or nature
11.4 For clarity and without limiting clauses 11.1 and 11.3 the parties agree that clauses 11.1 and 11.3 are to apply in connection with a breach of this Agreement, anticipated breach of this Agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
Australian consumer law
11.5 Except as contemplated by clause 11.6, nothing in this Agreement is intended to limit any of your rights under the Competition and Consumer Act 2010 (Cth).
11.6 If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any goods or services we supply in connection with this Agreement and our liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 11.1 and 11.3 do not apply to that liability. Instead our liability for that failure is (at our election) limited to:
(a) in the case of a supply of goods, us replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
(b) in the case of a supply of services, us supplying the services again or paying the cost of having the services supplied again.
12 Indemnity
12.1 Subject to clause 12.2, we defend you against any claim, demand, suit or proceeding made or bought against you by a third party alleging that the Inspiretek Solution infringes the Intellectual Property Rights of that third party, and will indemnify you from any damages or costs (including legal fees) finally awarded against you as a result of such claim, demand, suit or proceeding.
12.2 We will not be liable to you under clause 12.1 if:
(a) the claim is caused by any Intellectual Property Rights, material or thing provided by any person other than us, including Your Material;
(b) you do not notify us of the claim within 14 days after becoming aware of it;
(c) our ability to defend the claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;
(d) you do not give us reasonable assistance (based on the circumstances) in defending the claim; or
(e) you do not enable us to have control of the defence of the claim and all related settlement negotiations.
13 Force majeure
13.1 Neither party will be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to Force Majeure.
13.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
13.3 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 days, then either party may immediately terminate this Agreement on providing written notice to the other party.
14 General
14.1 The laws of Queensland, Australia govern this Agreement.
14.2 Each party irrevocably submits to the non exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.
14.3 You must not assign, in whole or in part, or novate your rights and obligations under this Agreement without the prior written consent of Inspiretek.
14.4 Inspiretek may assign its interest under this Agreement.
14.5 If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from this Agreement in the relevant jurisdiction, but the rest of this Agreement will not be affected.
14.6 Inspiretek may subcontract the performance of all or any part of Inspiretek’s obligations under this Agreement.
15 Definitions and interpretation
Definitions
15.1 In these terms:
Agreement means the terms of this licence agreement and the terms of the Order.
Authorised User means an authorised user of a User Account which is registered to access the functionality described in clause 4.1.
Chosen Subscription Period means the subscription period for the Inspiretek Solution chosen by you, which may either be a 30 day subscription period or 12 month subscription period.
Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
Consequential Loss means:
(a) loss of bargain;
(b) loss of revenues;
(c) loss of reputation;
(d) indirect loss;
(e) loss of profits;
(f) consequential loss;
(g) loss of actual or anticipated savings;
(h) lost opportunities, including opportunities to enter into arrangements with third parties;
(i) loss or damage in connection with claims against you by third parties; and
(j) loss or corruption of data.
End Users means each individual end user of the Inspiretek Solution associated with you.
Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, pandemic, government ordered lock down, fire, earthquake, storm or flood, and the failure of third-party equipment, software, technology or other services necessary for the performance of a party’s obligations under this Agreement.
Inspiretek Material means any material provided by or to which access is given by Inspiretek to you for the purposes of this Agreement including data stored by any means and includes the Inspiretek Solution.
Inspiretek Solution means the cloud-based system software known as Inspiretek Infinite, Inspiretek Insight and/or Inspiretek Insight Plus made available by Inspiretek from time to time, to which this Agreement relates.
Inspiretek Solution Terms of Use means the terms of use which govern use of the Inspiretek Solution, a copy of which may be accessed through the Inspiretek Solution.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, trade or business or company name, or right of registration of those rights.
Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.
Order has the meaning given in clause 2.2.
Personal Information has the meaning given to that term by the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time.
Privacy Laws means:
(a) the Privacy Act;
(b) the Australian Privacy Principles (or APPs) in schedule 1 Privacy Act; and
(c) all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.
Term means the term contemplated by clause 7.1.
Third Party Material means any material that is owned by a third party including data stored by any means.
User Account means an account registered to access the functionality of the Inspiretek Solution.
Your Data means any data you provide to Inspiretek or use in connection with the Inspiretek Solution or Services.
Your Material means Your Data and any material (including Third Party Material) you provide or give access to Inspiretek for the purposes of this Agreement including data stored by any means.
