End User License Agreement
This END USER LICENCE AGREEMENT contains the terms and conditions upon which inca business services (ABN 32 149 112 453) and Inca Safety Pty Ltd (ABN 48 637 793 652) (“we”, “us”, “our”, “inca business services”, "Inca Safety Pty Ltd") makes the Software and training material available to you (“you”, “your”).
Permission to use this Software and training material is conditional upon you, the customer, agreeing to the terms set out below. This software and training material is only offered to you on condition that you read and accept all the terms of this license and usage agreement. Acceptance will bind you and all of your employees to the terms of the EULA. By clicking "I Accept" at the end of these terms and conditions, you will be deemed to have accepted the following terms. If you do not wish to accept the terms, you must not click "I Accept" and you may not use the Software.
In consideration of the payment of the License Fees and user fees from time to time during the Term, the exchange of obligations and such other consideration as expressed in this EULA, inca business services and Inca Safety Pty Ltd hereby agree to provide you with access to, and grant to you a non-exclusive, non-transferrable license to use, the Software and training material for the Term on the terms and conditions set out in this EULA.
[Version 4.1 | Effective Date: 01 February 2022]
1 LICENCE
1.1 Pursuant to this EULA, you acquire a non-exclusive right to:
(a) use the Software on the terms and conditions set out in this document; and
(b) use the program strictly in accordance with the provisions of this EULA.
1.2 If you wish to use the program on more than one Device at the same time, it may make an additional copy upon receipt of written consent from inca business services or Inca Safety Pty Ltd and upon payment of an additional License Fee.
2 LICENCE FEE
2.1 During the Term: -
(a) you will pay to Inca Safety Pty Ltd or inca business services the License Fee as agreed.
(b) Inca Safety Pty Ltd or inca business services will issue periodic tax invoices to you setting out the License Fees payable by you in accordance with the Schedule of Charges.
2.2 Unless otherwise specified you must pay License Fees on or before the due date stated on the relevant tax invoice by such payment methods as are nominated on the tax invoice or otherwise notified to you.
2.3 You agree that you will not be entitled to offset or withhold any License Fees or other amounts due to us for any reason.
2.4 If inca business services or Inca Safety Pty Ltd agrees to refund, adjust or credit the License Fees or other amounts payable by you to us, we may credit such amounts against future tax invoices.
2.5 You are not entitled to use the program until the License Fee has been paid. A separate License Fee is payable in the circumstances described in clause 1.2.
3 YOUR OBLIGATIONS
3.1 You hereby undertake the following obligations:
(a) to not copy, reproduce, translate, adapt, vary or modify the program without the express consent of inca business services or Inca Safety Pty Ltd, except as expressly authorised by this agreement or Pt III Div. 4A of the Copyright Act 1968 (Cth);
(b) to supervise and control the use of the program in accordance with the: -
(i) terms of the EULA;
(ii) Privacy Policy;
(iii) Acceptable Use Policy;
(c) to ensure its employees, sub-contractors and other agents who have authorised access to the program are made aware of the terms of this license;
(d) to not provide or otherwise make available the program in any form to any person other than those referred to in paragraph (c) without the written consent of inca business services or Inca Safety Pty Ltd; and
(e) to not use the program for or in connection with a service bureau operation.
4 YOUR ACCOUNT
4.1 In order to enable you to use the Software, we will provide you with a non-transferable Account.
4.2 Security. You will be deemed to be responsible for any acts or events that occur within your Account. Accordingly, you must take reasonable steps to secure your Account against unauthorised access or use, including but not limited to ensuring that you: -
(a) keep secure, and do not share with any other person, your password and any other access or authorisation codes provided for your Account;
(b) do not permit or allow any other person to access or use your Account;
(c) notify us as soon as practicable if you become aware of any unauthorised use of your Account or believe that the security of your Account may be compromised.
4.3 Your Details. You must promptly update and maintain your user details within your Account, including any change of address or contact details.
4.4 Acceptable Use Policies. From time to time we may adopt Acceptable Use Policies in respect of the use of the Software. Such Acceptable Use Policies will be published on our Website and will apply to you and be incorporated into the terms of this Agreement from the later of the date that: -
(a) the Acceptable Use Policy is stated to commence; or
(b) we notify you of the Acceptable Use Policy.
4.5 Use of your Account. You must only use your Account for lawful purposes and in accordance with any applicable Acceptable Use Policies. You must not use your Account for any purpose that: -
(a) is illegal, unlawful or fraudulent;
(b) makes false or misleading allegations or accusations against, or record false or misleading information about, you or any other person or in relation to any event or circumstance;
(c) is capable of constituting harassment, discriminatory or defamatory of any other person;
(d) attempts to gain unauthorised access to other user accounts or our systems; or
(e) places unreasonable load or demand upon the Software or our systems, including but not limited to conducting denial of service attacks against our systems.
5 IP RIGHTS
5.1 To the extent that any Content you input into the Software embodies IP Rights: -
(a) you warrant to us that you are the owner of, or are otherwise authorised to use, the IP Rights subsisting in such Content;
(b) nothing in this EULA will constitute the assignment or transfer to us of any IP Rights subsisting in such Content; and
(c) you grant to us a non-exclusive, royalty-free license to use the Content, and all IP Rights subsisting in such Content, for the purpose of supplying you with the Software during the Term and otherwise performing our obligations to you under this Agreement.
5.2 You acknowledge that the Software is the subject of IP Rights owned by, or licensed to, us or our associated entities. You agree that you will not any time, conduct or permit any act which infringes the IP Rights subsisting in the Software, including but not limited to: -
(a) modifying, adapting, translating, reverse engineering, decompiling or disassembling the Software; or
(b) reproducing the Software except as otherwise expressly authorised by this EULA.
5.3 You agree that you will not use any of our Trade Marks without our prior written consent.
6 PRIVACY
6.1 Privacy Policies. From time to time we may adopt Privacy Policies in respect of the Content and personal information we handle in the course of providing the Software. Such Privacy Policies will be published on our Website and will apply to you and be incorporated into the terms of this EULA from the later of the date that: -
(a) the relevant Privacy Policy is stated to commence; or
(b) we notify you of the relevant Privacy Policy.
6.2 The Software requires that you to provide us with certain Personal Information. We will use that Personal Information to provide you with the Software.
7 SUPPORT
7.1 We encourage you read and familiarise yourself with the materials on our Website relating to the use, features and operation of the Software. We may change the content of such materials from time to time without notice.
7.2 From time to time, we may make additional support options available to you. Such support options will be subject to separate terms and conditions and may incur additional costs.
8 WARRANTIES
8.1 You hereby warrant to us that you: -
(a) have exercised your independent judgment in entering into this License and have not relied on any representation made by us or our servants, agents, which has not been stated expressly in this EULA, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by us or our servants, officers, agents or representatives;
(b) have full legal capacity to enter into, perform and be bound by this Agreement and are not subject to any Insolvency Event or any other restriction that hinders or prevents your capacity to enter, perform and be bound by this EULA; and
(c) by tendering any method of payment in respect of any amount due to us, are the account holder or have the authority and consent of the account holder of such payment methods;
8.2 You acknowledge that the Software is provided on an “as-is” basis and that, to the maximum extent permitted by law, we do not warrant or guarantee that the Software will: -
(a) be free from errors or defects;
(b) be continuously available or operational; or
(c) incorporate particular functions or features.
8.3 In particular, we will retain the right to: -
(a) add or remove functions or features of the site at our sole discretion; and
(b) restrict or limit access to the Software for the purpose of conducting scheduled and unscheduled maintenance of the Software or because of a Suspension Event.
8.4 Subject to clause 6.5 and to the maximum extent permitted by the Australian Consumer Law 2010 (Cth) (“the ACL”) (and relevant state legislation): -
(a) our sole obligation to you is to provide the Software in accordance with this EULA; and
(b) in no event will we, or any of our servants, officers, agents or representatives, be liable to you for any: -
(i) other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the Software or any goods or services provided to you under this EULA, and any indirect, special or consequential damages or injury to any person.
(ii) default or failure in performance of our obligations pursuant to this EULA resulting directly or indirectly from a Force Majeure event or your breach of any provision of this EULA; or
(iii) Liabilities caused by, or suffered by you in relation to, an error or defect in the Software or errors or faults caused by any person.
(a) you will have the benefit of certain non-excludable rights and remedies in respect of the Deliverables; and
(b) nothing in this EULA excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the ACL (or similar legislation) is so conferred;
PROVIDED THAT if the Deliverables are goods or services not ordinarily acquired for personal, domestic or household use or consumption pursuant to section 68A of the ACL (and similar provisions of relevant state legislation), our liability will be limited to:-
(c) the supplying of the Deliverables again; or
(d) the payment of the cost of having the Deliverables supplied again.
9 INDEMNITY
9.1 You agree to at all times promptly indemnify, save and hold us (and our related bodies corporate) harmless from and against all and any claims, damages, liabilities, costs and expenses (including legal costs and expenses) arising out of:-
(a) your breach of any warranty or obligation under this EULA;
(b) any act of negligence committed by you or on your behalf in performing or omitting to perform any obligations under this EULA;
(c) any loss suffered by a third party in connection with any of your acts or omissions, and those of your employees or agents (if any);
(d) any loss suffered by you or a third party in connection to a Suspension Event;
(e) any claim by a third party against us (or our related bodies corporate) arising out of or in connection with your entry into this EULA with us.
10 DISPUTES
10.1 If you have a dispute with us about this EULA:-
(a) you must notify us of the dispute, which notice must set out the nature and details of the dispute (“Dispute Notice”);
(b) upon receipt of your Dispute Notice, we will investigate the dispute and attempt to negotiate a resolution of the dispute with you.
10.2 If a dispute is not resolved within 20 business days after the date the Dispute Notice is given, or such longer period as you may agree with us, the dispute will be referred to mediation in accordance with the following terms:-
(a) the mediation is to be conducted:-
(i) in accordance with the Australian National Mediator Standards; and
(ii) by a mediator accredited under the National Mediator Accreditation System, as agreed upon by the parties or, failing such agreement, as otherwise nominated by the Queensland Law Society; and
(b) the role of any mediator is to assist in negotiating a resolution to the dispute. A mediator may not make a decision that is binding on a party unless that party has so agreed in writing.
(c) each party agrees to act in good faith.
(d) any information or documents provided by a party in the course of may only be used for the purposes of resolving the dispute.
(e) the mediation will be conducted in Brisbane, Queensland.
(f) each party will bear its own costs of participating in the mediation.
10.3 Unless we otherwise agree in writing, you will not be entitled to withhold payment of any amounts due to us under this Agreement or offset such amount against any Claim that you may have against us.
11 VARIATION
11.1 From time to time we may vary the terms of this EULA by giving you notice of the variation. Such Variation will apply to you and be incorporated into the terms of this Agreement from the later of the date that:-
(a) the relevant Variation is stated to commence; or
(b) we notify you of the relevant Variation.
12.1 You may terminate this EULA at any time by:-
(a) notifying us; and
(b) cancelling your Account.
12.2 We may terminate the EULA by notice to you if you:-
(a) fail to pay the License Fees or any amount payable to us by the relevant due date;
(b) breach any provision of this Agreement; or
(c) become the subject of an Insolvency Event;
12.3 Upon termination of the EULA for any reason:-
(a) your right to access and use the Software will end;
(b) you must pay to us any outstanding License Fees, which are not the subject of a dispute; and
(c) we may delete your Account and all data held by us associated with your Account.
12.4 Termination of the EULA does not affect any rights or remedies which we may have otherwise under this Agreement or at law or in equity.
12.5 Survival. Your obligations under Clauses 3, 4 and 5 survive expiry or termination of this EULA.
13 INTERPRETATION
13.1 The following expressions will have the meanings set out below:-
Acceptable Use Policy | the Acceptable Use Policy adopted by us from time to time and notified to you in accordance with clause 1.4; |
EULA | this End User License Agreement including all Acceptable Use Policy’s and Privacy Policy’s expressed to be supplemental to this EULA; |
Privacy Policy | the Privacy Policy as adopted by us from time to time and notified to you in accordance with clause 4.1; |
Personal Information | means personal information as defined by the Privacy Act 1988 (Cth); |
Device | means a device or an appliance, owned and operated by you in order to use the Software; |
Account | your user account within the Software; |
Content | any data generated or input by you into your Account; |
License Fees | those charges to be paid by you to us including but not limited to:- |
Force Majeure Event | a circumstance beyond our reasonable control which results in our being unable to observe or perform on time, an obligation under this Agreement, including but not limited to:- (a) acts of God, civil or military authority, changes in law, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, natural disasters or the elements; or (b) strikes, labor disputes, sabotage, malicious damage, shortage of suitable parts, components or materials including ink, chemicals and paper, labor or transportation; |
GST | the goods and services tax imposed pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated regulations and legislation; |
Insolvency Event | any one or more of the following events in relation to a party (“affected party”), namely:- (a) an order or court application is made, or the affected party passes a resolution, for:- (i) winding up; or (ii) the appointment of a controller, provisional liquidator, trustee for creditors or in bankruptcy; (b) an administrator, liquidator, receiver, receiver-manager or controller is appointed to the affected party or any of its property; (c) the holder of a security interest takes possession of any of your property; (d) the affected party (being a corporation) is taken under s459F(1) of the Corporations Act 2001 (Cth) to have failed to comply with a statutory demand; (e) the affected party is taken under s40 of the Bankruptcy Act 1966 (Cth) to have failed to comply with a bankruptcy notice; (f) the affected party becomes or is taken to become insolvent or unable to pay its debts, suspends payment of its debts, ceases or threatens to cease to carry on a material part of its business; (g) the process or any court or authority is invoked against the affected party or its property to enforce a judgement or order for the payment of money or the recover of property, unless you can demonstrate to the other party’s satisfaction that there is no substantial basis for such order or judgement; (h) the affected party dies, loses full legal capacity or otherwise becomes unable to manage its own affairs for any reason; (i) the affected party takes any step that could result in the affected party becoming an insolvent under administration (as that term is defined in the Corporations Act); (j) the affected party takes any step toward entering into a compromise or arrangement with, or assignment for the benefit of its members or creditors; (k) any analogous event; unless such event or events take place as part of a solvent reconstruction, amalgamation, merger or consolidation that has been notified to and approved by the other party; |
IP Rights | means intellectual property rights including patents, patent applications, trademarks, copyright, designs (whether registered or not), circuit layout rights, know-how and trade secrets subsisting in the Software, any improvements or the Confidential Information and anywhere in the world; |
License | the License of the Software granted by inca business services or Inca Safety Pty Ltd to you in accordance with this EULA; |
Software | the software system known as “inca business services or Inca Safety” provided to you by us in accordance with this Agreement, including any product documentation and manuals; |
Schedule of Charges | # as agreed between vendor and Inca Safety Pty Ltd / inca Business Services |
Suspension Event | a risk management event where:- (a) inca business services or Inca Safety Pty Ltd reasonably believes that the integrity of its network through which it provides the Software is at risk or has been compromised, and (b) that an emergency has arisen with respect to:- (i) the performance of its network and the provision of the Software; or (ii) the management of Personal Information; and inca business services or Inca Safety Pty Ltd restricts access to the Software to manage the risk management event. |
Term | the period from the date that you first accept this Agreement or use the Software until termination pursuant to clause 10; |
Trade Marks | those trademarks, names and logos associated with the Software and our operations, including by not limited to inca business services or Inca Safety Pty Ltd logo's; |
Website | our website located at incasafety.com or incabusiness.com or such other domain names as may be applicable from time to time; |
13.2 GST. Unless otherwise specified, all monetary amounts are in Australian Dollars (AU$) and are exclusive of applicable GST.
13.3 Governing Law. This Agreement shall be governed by and construed according to the law of the State of Queensland in the Commonwealth of Australia, and all disputes will be heard by the appropriate courts in Queensland.
13.4 Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the parties as to the subject matter of this Agreement and merges all prior discussions and Agreements between you and us. Neither party will be bound by any conditions, definitions, warranties or representations in respect of the subject matter of this Agreement other than those contained in this Agreement.
13.5 Severability. If any provision of this Agreement is to any extent held by any Court of competent jurisdiction to be invalid or unenforceable, the remaining terms and provisions of this Agreement will not be affected and will remain in full force and effect.
14 NOTICES
14.1 You agree that we may serve any notice under this Agreement by:-
(b) sending the notice to the:-
(i) email address; or
(ii) postal address
associated with your Account.
14.2 You may serve any notice under this Agreement by:-
(b) sending the notice to us by email or post to the address nominated on our Website.
14.3 Receipt. A notice will be deemed to have been received at the following times, namely where dispatched:-
(a) in accordance with clause 12.1(a) – at the time you first log into your Account after the notice is dispatched;
(b) by post – five (5) business days after posting, or 10 business days if posted to or from a location outside Australia; of
(c) by email or in accordance with clause 12.2(a) – one (1) hour after dispatch, if dispatched during business hours, or at 9:00am on the following business day if dispatched outside business hours.
unless earlier proof of receipt can be established by the sender.
15 GENERAL
15.1 Relationship. Nothing in this Agreement creates a relationship of principal and agent, partnership, joint venture or employment between you and us or any of our employees, consultants, agents or sub-contractors.
15.2 Assignment. You may not assign, transfer or otherwise deal with the benefit of this Agreement in any way without our prior written consent. We may assign or novate our rights and obligations under this Agreement at any time by giving notice to you.
15.3 Waiver. Any waiver of, or failure or omission to enforce, any of our rights under this Agreement will not constitute a waiver of our rights under this Agreement.
15.4 Further assurances. Each party shall do all such acts, matters and things and execute such further Agreements and other documents as may be necessary or desirable for the purpose of giving effect to this Agreement.
End Of End User License Agreement
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