General Terms & Conditions
A. Mobile Interactive Technologies Pty Ltd (Licensor) allows (Client) to generate and use the Reports using the platform owned by the Licensor.
B. You have requested use of the platform to generate and use the Reports and the Licensor has agreed to your request on the terms and conditions set out in this agreement.
(1)In using the Reports, you may be required to provide the Licensor with some of your personal details and information.
(1)In this agreement, words beginning with a capital letter have the meaning ascribed to them in clause 11.
(2)The occurrence of any of the following will be deemed to constitute your acceptance of this agreement:
(a)Your execution of this agreement.
(b)Your payment of the Licence Fee to the Licensor.
(c)Your download or use of the Reports,
(3)By accepting this agreement, you agree that a legally binding agreement is formed between you and the Licensor.
4.1 Grant of Intellectual Property Licence
The Licensor grants to you a revocable, non-exclusive and non-transferable licence to use the Reports and the Intellectual Property comprising the Reports on the terms and conditions set out in this document (Licence).
(1) Subject to paragraph (2), the Licence is granted to you for the Term.
(2) Unless you notify the Licensor prior to the expiry of the Term that you no longer wish to have the benefit of the Licence:
(a) the Licence will automatically renew on a yearly basis commencing from the day after the Term; and
(b) subject to any change in the Licence Fee pursuant to clause 5.1 (if applicable), this agreement will apply to the extension of the Licence,
4.3 Licence is personal
(1) The Licence and the rights and obligations imposed on you under this agreement are personal to you. (2)You must not Encumber or Assign:
(a) the Licence; or
(b) any part of your rights and obligations under this agreement.
4.4Assignment by Licensor
(1) The Licensor may Assign the whole or any part of its interest in this agreement and/or the Intellectual Property at any time by providing you with notice.
(2) The Licensor will not be liable to you for the performance or observance of any covenant or obligation on its part to be performed and observed from the date of the assignment.
5. Price and payment
(1) You must pay the Licence Fee to the Licensor:
(a) on the Commencement Date; and
(b) if the Licence operates for an Extended Term, at the commencement of the Extended Term to which it applies.
(2)If the Licence operates for an Extended Term:
(a) the Licensor may increase the Licence Fee at its absolute discretion and provide you with notice of that increase no later than fourteen (14) days prior to the expiry of the Term or an Extended Term (as applicable); and
(b) if upon receiving that notice you do not terminate this agreement, the Licence Fee notified will apply as at the commencement of Extended Term to which it applies.
All payments made by you under, or in connection with, this agreement must be made to the Licensor:
(1) in Australian Dollars;
(2) without set-off or counterclaim of any kind;
(3) in cleared funds on the payment terms of the Licensor; and
Unless otherwise expressly stated, amounts payable under or in connection with this agreement have been calculated with regard to GST.You must pay GST in addition to all amounts referred to, or in connection with, this agreement.
6. Use of Reports
You acknowledge and agree that:
(1) your Content and other information you provide in connection with the Reports will be true, accurate and not misleading, deceptive or likely to be misled or deceive;
(2) the Reports will be used and completed by competent and qualified persons;
(3) the Reports are provided to you by the Licensor 'as is' and without warranty of any kind;
(4) you access Third Party Services at your own risk and that you will comply with the terms and conditions of any Third Party Service;
(5) your use of the Reports will comply with any and all Laws; and
(6) you will keep confidential all information identified by the Licensor as confidential.
6.2 Prohibitions on Use
When using the Reports, you must not:
(1) use another person's personal information without permission;
(2) undertake any fraudulent or false activities using the Reports;
(3) tamper with, hinder the operation of or make unauthorised modifications to the Reports;
(4) undertake any activities that may result in the Reports becoming subject to any form of malicious virus;
(5) commit any act that may breach any Laws; or
(6) knowingly permit another person to do any of the above acts.
6.3 Disclaimers with respect to Reports
(1) The Licensor reserves the right to format, correct, change, refuse or remove any of your Content at its absolute discretion if it not comply with this agreement without notice and without any Claim being made against the Licensor.
(2) The Licensor reserves the right to modify, suspend or discontinue, temporarily or permanently, the Reports without notice and without any Claim being made against the Licensor.
(3) No warranty (of any nature) is provided by the Licensor with respect to the Reports and any information contained within, or in connection with, the Reports. The information provided within, or in connection with, the Reports is of a general nature only. You acknowledge and agree that you should conduct your own due diligence appropriate to your circumstances with respect to the Reports as the Licensor does not warrant that the Reports are correct and accurate, will meet your requirements or needs, achieve any intended results or be compatible or work with any of your systems or services.
(4) Any reliance upon any advice, opinion, statement or other information displayed or distributed in connection with the Reports is at your sole risk and the Licensor will not be responsible or liable for any loss or damage that results from the use of the information within,or in connection with, the Reports.
(5) Although the Licensor takes all steps to ensure the security and integrity of the Reports, you acknowledge and agree that the Licensor will not be liable for any loss or damage you suffer by using the Reports, any breakdown or interruption to the Reports or the Reports being hacked or otherwise being affected by any form of malicious virus or the data you receive from the Licensor not being secure or virus-free.
(6) Although the Licensor uses its best endeavours to ensure that the information within, and in connection to, the Reports is correct, there may be times where errors or omissions have unfortunately been made and the Licensor reserves the right to correct any such errors or omissions without notice and without any Claim being made against the Licensor.
6.4 Modifications to Reports
(1) The Licensor may from time to time provide enhancements or improvements to the Reports, which may include patches, bug fixes, updates, upgrades and other modifications which may modify or delete certain features and/or functionalities of the Reports.
(2) You acknowledge and agree that the Licensor:
(a) is under no obligation to provide any updates, enhancements or improvements to the Reports;
(b) is under no obligation to maintain, provide or enable any particular features and/or functionalities of the Reports; and
(c) does not provide any maintenance or support for the Reports.
7. Intellectual Property
7.1 Ownership of the Intellectual Property
(1) You acknowledge that ownership of the Intellectual Property is at all times vested in the Licensor.
(2) You agree that you will not at any time attempt to assert any interest in the Intellectual Property.
7.2 Ownership of Improvements to the Intellectual Property
(1) If the Licensor alters or adds to the Intellectual Property (in any way) then ownership in the altered or new Intellectual Property is vested (and remains vested) in the Licensor.
(2) You must not make any alteration, addition or improvement to the Intellectual Property without the approval of Licensor. The ownership of any alteration, addition or improvement to the Intellectual Property by you vests in the Licensor.
7.3 Prohibited conduct
You must not:
(1) transfer, Assign, sell or otherwise distribute (or attempt to do any of these acts) the Intellectual Property;
(2) launch, attempt to launch or promote any product, business or arrangement that is the same or similar to the Intellectual Property (or any part of it);
(3) modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Intellectual Property;
(4) represent or hold yourself out as being entitled to any proprietary interest in the Intellectual Property;
(5) do anything that is inconsistent with the rights of the Licensor in the Intellectual Property;
(6) engage in any conduct that does, or may in the opinion of the Licensor, result in a diminution of the goodwill attaching to the Intellectual Property;
(7) engage in any conduct that does, or may in the opinion of the Licensor, result in the Licensor or the Intellectual Property being brought into disrepute; or
(8) knowingly permit another person to do any of the above acts.
8. Risk, Indemnity & liability
8.1 Risk and liability
(1) You acknowledge, accept, use and rely on the Reports solely at your own risk.
(2) You release the Licensor (including its Related Parties, officers, employees, agents and contractors)from any and all liability and Claims arising out of or in connection with:
(a) your use of the Reports;
(b) the Licence;
(c) your use of the Intellectual Property;
(e) your use of a Third Party Service; or
(f) anything arising under this agreement,
except to the extent that any such liability or Claim arose as a result ofa deliberate act of the Licensor, or a breach of these terms and conditions by the Licensor.
You indemnify the Licensor (including its Related Parties, officers, employees, agents and contractors) from and against any Claims arising out of or in connection with:
(1) your use of the Reports;
(2) the Licence;
(3) your use of the Intellectual Property;
(4) your Content;
(5) your use of a Third Party Service;
(6) any third party making a Claim against the Licensor in connection with the Reports; or
(7) anything arising under this agreement,
except to the extent that any such Claim arose as a result of a deliberate or fraudulent act of the Licensor.
To the full extent permitted by Law, liability of the Licensor for any breach of these terms and conditions is limited to the Licence Fee.
8.4 Indirect losses
To the full extent permitted by Law, the Licensor will not be liable for any exemplary, aggravated or punitive damages or any indirect or consequential losses, any rectification costs or third party claims in connection with this agreement.
8.5 Third Party Service
(1) assumes no responsibility for any Third Party Service used by you in connection with the Reports; and
(2) is not liable to you for any Claim, loss or damage you may suffer by or in connection with your use of a Third Party Service in connection with the Reports.
8.6 Exclusion of warranties
To the fullest extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom or under Law that impose any liability on the Licensor are expressly excluded.
9.1 The Licensor's right to suspend and terminate
(1) Without limiting the Licensor's rights at Law, if you do not comply with these terms and conditions this agreement or are otherwise deemed by the Licensor to be unfit to use the Reports, then the Licensor at its absolute discretion may immediately without notice:
(a) suspend your right to use the Reports until it is satisfied that you will comply with this agreement in full; or
(b) terminate your right to use the Reports.
(2) If your right to use the Reports is terminated in accordance with paragraph (1)(b), you will not be entitled to a refund of the Licence Fee for the Term or Extended Term (as applicable).
9.2 Your right to terminate
You may terminate this agreement at any time by providing notice to the Licensor, which such termination taking effect on and from the end of the Term or Extended Term (as applicable).In such a circumstance, no part of the Licence Fee will be refunded to you.
9.3 Obligations on Licensee on expiry or termination
On the expiry or termination of this agreement you must immediately cease using the Reports and the Intellectual Property in any way and delete, destroy or return any documents to the Licensor at its request.
10. General provisions
10.1 Amendment to terms
This agreement may only be amended or supplemented in writing signed by the parties.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right.
Any provision of this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid or enforceable, and is otherwise capable of being severed to the extent of the invalidity or enforceability, without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
10.4 Governing Law
The Law in force in the State of New South Wales governs this agreement. The parties:
(1) submit to the exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeal from those courts in respect of any proceedings in connection with this agreement; and
(2) may not seek to have any proceedings removed from the jurisdiction of New South Wales on the grounds of forum non conveniens.
Assign means as the context requires refers to any assignment, sale, licence, sub-licence, transfer, disposition, declaration of trust over or other assignment of a legal and/or beneficial interest.
Authority means (as appropriate) any:
(1) federal, state or local government;
(2) department of any federal, state or local government;
(3) any court or administrative tribunal; or
(4) statutory corporation or regulatory body.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at Law, in equity, under statute or otherwise.
Commencement Date has the meaning ascribed to that term in clause 4(1).
Content means text, images or other information that you supply, post, upload, link to or otherwise make available within, or in connection
with, the Reports.
Encumbrance means an interest or power:
(1) reserved in or over an interest in any asset;
(2) created or otherwise arising in or over any interest in any asset under any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, title retention, conditional sale agreement, hire or hire purchase agreement, option, restriction as to transfer, use or possession, easement, subordination to any right of any other person and any other encumbrance or security interest, trust or bill of sale; or
(3) by way of security for the payment of a debt or other monetary obligation or the performance of any obligation. Encumber means to grant an Encumbrance.
Extended Term has the meaning ascribed to that term at clause 5.2(2).
Intellectual Property means all intellectual property rights conferred by Law on the Licensor including (without limitation): (1)the Reports;
(2)all other intellectual property rights conferred by Law and in anything created in connection with Reports including copyright, trademark, design, patent, trade, business or company names and all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967) and any right to register those rights; and
(3)such other intellectual property notified to you by the Licensor from time to time.
Law means all legislation, regulations, by-laws, common law and other binding order made by any Authority.
Licence has the meaning ascribed to that term in clause 5.1.
Licence Fee means the license fee for the Term as provided by the Licensor and otherwise as notified to you in accordance with clause 5.1(2) for any Extended Term.
Related Party means a corporation which:
(1) is controlled (within the meaning of s50AA of the Corporations Act 2001 (Cth)) by the same person or persons as the person or persons
controlling the Licensor;
(2) owns shares in, or has some of its shares owned by, the Licensor;
(3) has the same or similar board composition to the Licensor; or
(4) is a related body corporate within the meaning of s50 of the Corporations Act 2001 (Cth).
Reports means the reporting software program and associated documents, reports and information provided by the Licensor.
Term means twelve (12) months from the Commencement Date.
Third Party Service means:
(1) services provided by a party that is not party to this agreement that are necessary for your use of the Reports; and/or
(2) content of a party that is not party to this agreement that is displayed, included or made available within, or in connection with, the Reports.