This Agreement is made between Neutopia Pty Ltd ABN 167 226 977 (Licensor) and the End User who accepts this Agreement pursuant to clause 3.1 of this Agreement (Licensee).
Defined terms & interpretation
In this document:
Confidential Information means any information obtained by either party, or its employees, agents or sub-contractors concerning the other party, or the other party’s business activities (including, but not limited to, information in machine readable form) and that:
is by its nature confidential;
is designated by a party as confidential; or
the other party knows or ought to know is confidential;
and in the case of the Licensor specifically includes the Licensed Site and the Documentation.
Documentation means all online, electronic or written information and instruction manuals regarding the use of the Licensed Site;
Harmful Code means any virus, disabling or malicious device or code, worm, trojan, time bomb or other harmful or destructive code;
Licence means the licence granted by the Licensor to the Licensee in terms of clause 4.1 of this Agreement;
Licensed Site orLicensed Services the Neutopia website and services developed by or on behalf of the Licensor offered through the website www.neutopia.co, as well as any updates, modifications and patches to such website and services that the Licensor makes available to the Licensee during the currency of this Agreement;
Licensee Data means the data, information, material or content the Licensee processes, submits or uploads using the Licensed Site;
Log Data means metadata about services in the cloud, logs, audit trail events and metrics;
Registered Users means the user or users of the Licensed Site that are authorised and registered by the Licensor;
Server means the computer system on which the Licensed Site or Licensed Services are or are to be loaded; and
Term means the duration of the License as selected by the Licensee at the time that the Licensee completes the online subscription application for the grant of a license in respect of the Licensed Site.
Agreement legally binding
This Agreement commences and takes effect when the Licensee clicks an "I Agree" button or check box presented with these terms or by using the Licensed Site.
The Licensee represents to the Licensor that it has authority to enter into this Agreement.
By using the Licensed Site, the Licensee will be bound by the terms of this Agreement.
Subject to the provisions of this clause 4, the Licensor grants the Licensee a non-exclusive, non-transferable, non-sub-licensable licence to access, view and use the Licensed Site for the Term solely in accordance with this Agreement as an end user only.
The Licensee may not use the Licensed Site for third party training, rental or service bureau use. The Licensee must not rent, lease, sub-licence, sell, assign, distribute or dispose of the Licensed Site, or the Documentation. The Licensee must not translate, disassemble, decompile or reverse engineer the Licensed Site or make any attempt to discover the source code of the Licensed Site or create derivative works based on the Licensed Site, or the Documentation or any portions thereof.
The Licensor may physically transfer the Licensed Site from the Server to another central computer located at the Licensor’s premises, at the Licensor's sole discretion.
The Licensee’s use of the Licensed Site may be monitored by the Licensor:
to ensure that the use is authorised;
to facilitate protection against unauthorised access;
to verify security procedures, availability and operational security;
to provide software and feature updates or notification thereof; and
for any other purposes reasonably required by the Licensor.
Access to the Licensed Site
To access the Licensed Site, the Licensee must select a unique user identification name and password.
The Licensee must keep its unique user identification name and password confidential and not disclose them or make them available to any third party. The Licensor will only store the Licensee’s password in encrypted form.
The Licensor is not responsible for any unauthorised access or use of the Licensee’s unique user identification name or password. The Licensee is responsible for all activities which occur in connection with its unique user identification name and password (whether undertaken by the Licensee or a third party) or if such information is lost or stolen.
The Licensor may conduct schedule maintenance or unplanned maintenance on the Licensed Site and Licensed Services and the Licensor will use its best endeavours to notify the Licensee in accordance with clause 15.1 of this Agreement.
Any maintenance performed on the Licensed Site and Licensed Services may cause downtime to the Licensed Site and Licensed Services and the Licensor will use its best endeavours to minimise such downtime.
The Licensee acknowledge and agree that apart from circumstances described in clause 6.2 above, there may be downtime to the Licensed Site and Licensed Services that may be caused by unforeseen circumstances that are out of the Licensor's control. The Licensor will use its best endeavours to reinstate the Licensed Site and Licensed Services as soon as it becomes practicable.
The Licensee will be entitled to access, view and use the Licensed Site in accordance with the terms of this Agreement.
The Licensee is solely responsible for the development, accuracy, quality, integrity, reliability, content, operation, maintenance, and use of the Licensee Data including but not limited to:
data or content uploaded;
any claims relating to the Licensee Data;
end users use of the Licensee Data;
any corruption of the Licensee Data in connection with the Licensee’s use of the Licensed Site or otherwise (including while uploading, deleting or migrating the Licensee Data from the Licensed Site); and
compliance of the Licensee Data with any laws, rules regulations and policies.
The Licensee is solely responsible for:
any costs associated with uploading the Licensee Data onto the Licensed Site and migrating the Licensee Data off the Licensed Site;
the security of the Licensee’s account and password;
taking its own steps to maintain appropriate security, protection and backup of the Licensee Data, which may include the use of encryption technology to protect the Licensee Data from unauthorized access and routine archiving the Licensee Data;
regularly backing up the Licensee Data and using appropriate and up-to-date malicious code and virus detection software for preventing and detecting Harmful Code.
The Licensor will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of the Licensee Data.
The Licensee acknowledges that the Licensor may freely use the Log Data as part of its efforts to improve and analyse the performance of the Licensed Site.
Copyright and Indemnity
This License is not a sale of the Licensed Site. The Licensee acknowledges that the Licensor retains all right, title and interest in the Licensed Site, the Documentation and all other deliverables including but not limited to any upgrades, modifications, enhancements and any improvements of whatsoever nature, reports, programming, documentation and/or specifications.
The Licensed Site and the Documentation are copyrighted works of authorship of the Licensor and the Licensee must not at any time (either before or after termination of this Agreement) do any act or permit the doing of any act which infringes that copyright.
If the Licensed Site becomes or may become the subject of a claim of infringement of any third party's intellectual property rights, the Licensor may, at its sole option and discretion, replace or modify the Licensed Site to make in non-infringing.
The remedies set out in clause 9.3 above are the Licensor’s sole liability and the exclusive remedy for any infringement of intellectual property rights by the Licensed Site or any other items provided by under this Agreement.
The Licensee indemnifies the Licensor, the Licensor’s affiliates, officers, directors, employees, members, managers, consultants, agents, and suppliers and will keep the Licensor indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature (including third party claims), including legal fees or other costs and disbursements that the Licensor or the Licensor’s affiliates sustain or incur as a direct or indirect result of:
any infringement of the Licensor’s or any third party's intellectual property rights arising from the Licensee’s use of the Licensed Site;
the Licensee’s use of the Licensed Site;
violation by the Licensee or any other user of the Licensee’s account, of any intellectual property or other right of any person or entity;
the Licensee’s breach of this Agreement or any applicable law, policy, rule or regulation.
Each of the parties must keep confidential all Confidential Information. Neither party shall, without the prior consent of the other party, disclose Confidential Information to any third party, and each party must take the appropriate measures to ensure that such confidentiality is preserved.
Notwithstanding clause 10.1 above, a party may disclose Confidential Information
if and to the extent that the Confidential Information is in the public domain through no fault of the disclosing party;
if and to the extent required by law or for any judicial proceedings;
if and to the extent that the information was already known prior to the start of this Agreement or becomes known from a third party other than by breach of confidence.
The obligations under this clause survive termination.
Disclaimer and Limitation of Liability
The Licensed Site is provided on an as is basis and is subject to the terms and conditions in this Agreement and any non-excludable rights under Australian consumer protection laws.
To the extent permitted by law, the Licensor's liability for damages to the Licensee for the Licensor for breach of a condition or warranty will be limited to:
the supplying of the Licensed Site or Licensed Services again; or
the payment of the cost of having the Licensed Site or Licensed Services supplied again which will not exceed [insert fixed amount ],
and excludes any loss or damage that is caused by the Licensee, the Licensee's failure to minimise the loss or loss or damage caused by the Licensor due to any unforeseeable circumstances.
Access to the Licensed Site may be suspended if a third party supplier of the servers on which the Licensed Site is hosted suspends provision of access to those servers or in the Licensor’s discretion including if there is a planned outage for operational or maintenance reasons, it is considered necessary for unscheduled repair, maintenance or service or in connection with a suspected or actual security risk.
In the Licensor’s sole discretion it may suspend the Licensee’s account or the Licensee’s right to access the Licensed Site and the Licensee’s account. Circumstances when this may occur includes:
on receipt of evidence of inappropriate or unauthorised access;
the Licensee’s use of the Licensed Site poses a security risk to the Licensed Site, or any third party, may adversely impact the systems or data of any other user, may subject the Licensor, the Licensor’s affiliates, or any third party to liability, or may be fraudulent; and
non-compliance with this Agreement.
The Licensor’s rights under this clause 12 are in addition to any other rights of termination in this Agreement.
The Licensor will be entitled to terminate this Licence for any reason by providing the Licensee with 30 days’ notice in writing.
The Licensor will be entitled to terminate this Licence immediately by notice in writing if:
the Licensee is in breach of any term or condition of this Agreement and such breach is not remedied within seven (7) days of written notice from the Licensor;
a liquidator (provisional or final), receiver, receiver and manager or administrator is appointed to the Licensee or an order is granted for the winding up of the Licensee or the Licensee passes a resolution for its winding up.
On termination of this Licence for any reason:
all of the Licensee’s rights under this Agreement immediately terminate and the Licensee must immediately discontinue the use of all Licensed Site and at the request of the Licensor destroy all copies of such Confidential Information; and
the Licensee must remove the Licensee Data from being stored using the Licensed Site (at its cost and risk).
Any termination of this Agreement is without prejudice to the accrued rights and remedies of the parties at the date of termination.
The Licensor may modify this Agreement at any time by posting a revised version on the Licensor’s website and/or notifying the Licensee in accordance with the provisions of clause 15.1 of this Agreement.
The modified terms will become effective upon posting on the Licensed Site. By continuing to use the Licensed Site after the effective date of any modifications to this Agreement, the Licensee agrees to be bound by the modified terms.
Other than as set out above, no addition to, or modification of any provision of this Agreement will be binding unless agreed to in writing by the Licensor.
The Licensor may provide any notice to the Licensee under this Agreement by:
posting a notice on www.neutopia.co; or
sending a message to the email address then associated with the Licensee’s account.
Notices the Licensor provides by posting on www.universalplatform.com will be effective upon posting and notices the Licensor provides by email will be effective when the Licensor sends the email to the Licensee.
It is the Licensee’s responsibility to keep the Licensee’s email address current. The Licensee will be deemed to have received any email sent to the email address then associated with the Licensee’s account when the Licensor sends the email, whether or not the Licensee actually receives the email.
To give the Licensor notice under this Agreement the Licensee must use the email or physical address displayed at www.neutopia.co.
Neither party shall be liable to the other for the consequences of any delays or failure in performance caused by any event beyond that party's reasonable control, including but not limited to acts of God, fire, flood, strike, labour problems (not being labour problems relating to that party's employees or contractors) or riots.
This Agreement will be governed by the laws of the State of New South Wales, Australia and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and all courts having jurisdiction to hear appeals.
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter.
This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
This Agreement and any rights under this Agreement are not assignable by the Licensee without prior written consent from the Licensor. The Licensor may assign any of its rights and obligations under this Agreement without the consent of the Licensee.
Any provision of this Agreement that is illegal, void or unenforceable will not form part of this Agreement and the remaining provisions of this Agreement will not be invalidated by an illegal, void or unenforceable provision.
A waiver of a breach of this Agreement or of any right, power, authority, discretion or remedy arising upon a breach of or a default under this Agreement must be in writing and signed by the party granting the waiver. A breach or default under this Agreement is not waived by any failure to exercise or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under this Agreement