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End User Licence Agreement
This Software Licence Agreement (the "Agreement") is a legal document that binds registered End Users to certain obligations contained herein. You understand and agree that the software application services described below are provided to End Users under this Agreement by People Diagnostix Pty Ltd, (referred to hereunder as "People Diagnostix", "We," or "Us"), an Australian company with offices located at Enterprise Unit 3, 9 De Laeter Way Bentley Western Australia.
PLEASE READ THIS AGREEMENT CAREFULLY. IT IS AN EXPRESS CONDITION THAT ALL USERS WHO ACCESS THE SERVICES AND USE THE SOFTWARE ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY CLICKING ON THE “I AGREE” BOX BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, CLICK THE “I DO NOT AGREE” BOX, EXIT IMMEDIATELY AND DO NOT USE THE SERVICES.
People Diagnostix provides the FlourishDx for assessment and educational purposes. End User desires to license the software solution from People Diagnostix, and People Diagnostix desires to grant a licence to the software solution pursuant to the terms and conditions hereof.
In consideration of the agreements contained below, the Parties hereby agree as follows:
In this Agreement, including the recitals, unless the context otherwise requires:
Additional Seats means additional Seats purchased by the Subscriber after the Effective Date of this Agreement;
Address For Service means, in respect of a Party, that Party’s Address for Service or as varied by prior notice;
Administrator means the Administrator nominated by the Subscriber during the Service sign up process (who shall be an End User) or the End User nominated by the Subscriber from time to time to replace the Administrator;
Administrator Account means an End User Account which allows the Administrator to perform the Administrative Functions;
Administrative Functions includes the creation of End User Accounts, access to de-identified and aggregate data arising from End Users’ use of the Services, and delegation of these functions to other End User Accounts at the discretion of the Administrator;
Agreement means this agreement;
Effective Date means the date that this Agreement is entered into;
End User means an employee or representative of the Subscriber who is allocated a Seat in accordance with this Agreement and who is authorised by the Subscriber and People Diagnostix to use the Services;
End User Account means a non-transferrable account which permits an End User to use the Services;
End User Account means a non-transferrable account which permits an End User to use the Services;
Initial Seats means the number of Seats purchased pursuant to this Agreement as of the Effective Date;
Legal Notices means the Legal Notices available at www.flourishdx.com;
Parties means the parties to this Agreement;
Seat Payment means the Seat Price multiplied by the number of Seats purchased pursuant to this Agreement;
Seat Price means the price payable per Seat;
Seats means the number of End User Accounts that the Subscriber is entitled to create during the Subscription Term;
Services means access to and use of the Software;
Software means FlourishDx, being People Diagnostix’s cloud-based software which includes the Flourish Survey and Work Design Survey;
Subscription End Date means the date that is exactly twelve (12) months after the Subscription Start Date;
Subscription Start Date means the date of payment for service;
Subscription Term means the period commencing on the Subscription Start Date and expiring on the Subscription End Date.
2.1 People Diagnostix grants to the Subscriber, and the Subscriber accepts from People Diagnostix, a limited, non-exclusive, non-transferrable right to use the Services during the Subscription Term and only for the Permitted Use.
2.2 The Services shall not be used by any person that is not an End User.
2.3 The Subscriber must ensure that its End Users use the Services in accordance with the terms and conditions of this Agreement.
2.4 The use of the Services by the Subscriber or any End User pursuant to this Agreement shall be subject to the Legal Notices.
3.1 Subject to receipt of all amounts payable set out at clause 5, People Diagnostix shall ensure that:
3.1.1 On the Subscription Start Date: (a) Services commence; (b) the Initial Seats and any Additional Seats purchased prior to the Subscription Start Date are made available to the Subscriber; and (c) one of those Seats is allocated to the Administrator who is granted access to the Administrator Account;
3.1.2 any Additional Seats purchased after the Subscription Start Date are made available to the Subscriber upon receipt of payment of the Seat Payment.
3.2 All Seats purchased pursuant to this Agreement expire on the Subscription End Date.
4. Administrator and End Users
4.1 The Administrator is authorised to perform the Administrative Functions on behalf of the Subscriber.4.2 All access to the Services granted to End Users under this Agreement shall be subject to the Legal Notices provided at www.flourishdx.com.
4.3 The Subscriber shall ensure that all End Users comply with the terms of the Legal Notices and the Subscriber shall be liable for any breach of the Legal Notices.
4.4 The Subscriber must ensure that:
4.4.1 it obtains any necessary consent from its End Users to access and use the Services; and
4.4.2 its End Users are aware of and comply with the terms and conditions of this Agreement.
5. Seat Payments
5.1 The Subscriber shall pay to People Diagnostix the Seat Payment in respect of the Initial Seats within 7 days of the Effective Date or on the Subscription Start Date, whichever is the earlier.
5.2 Upon purchase of Additional Seats, Subscriber shall pay People Diagnostix the Seat Payment for all Additional Seats at the time of purchase.
5.3 The Seat Price and all other amounts are exclusive of GST unless otherwise indicated.
5.4 The Seat Price for a Seat is fixed, regardless of whether the Seat is purchased or allocated to an End User after the Subscription Start Date or not allocated to an End User at all.
5.5 The Subscriber shall provide a valid credit card, electronic funds transfer or other acceptable method of payment to People Diagnostix and shall take all necessary steps to authorise payment of all amounts payable pursuant to this clause 5.
5.6 Any additional payment terms between the Subscriber and People Diagnostix including in relation to the purchase of Additional Seats shall be agreed to in Writing, including but not limited to an invoice, billing agreement, or other Written document.
1.1 “Writing” and “Written” for the purposes of this Agreement shall include writing on paper and email (including email provided through the functionality on the People Diagnostix’s web and mobile sites), but shall not include text messages or other electronic forms of writing.
5.8 “Sign” and “Signature” shall include signs made by hand on paper and electronic signatures.
6.1 Upon termination of this Agreement for any reason whatsoever, all rights, Licences, Seats, End User Accounts and subscriptions granted to the Subscriber shall immediately terminate. The Subscriber shall cease using the Services and shall prohibit End Users from using the Services.
7. Intellectual Property Rights
7.1 The Subscriber acknowledges and agrees that all right, title, and interest in and to the Services and the Software, together with its codes, sequences, derivative works, organisation, structure, interfaces, documentation, data, trade names, trademarks, or other related materials (People Diagnostix IP), is and at all times shall remain, the sole and exclusive property of People Diagnostix. People Diagnostix IP contains trade secrets and proprietary information owned by People Diagnostix and protected by Australian law and international agreements. Except for the right to use the Service, as expressly provided for herein, this Agreement does not grant to the Subscriber any rights to or in copyright, patents, trade secrets, trade names, service names or marks, trademarks (whether registered or not), databases, or any rights or licenses with respect to the Services or the Software.
7.2 The Subscriber shall not attempt, or directly or indirectly allow any End User, Administrator or third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse engineer, disassemble, reverse compile, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means.
7.3 The provisions of this clause 7 shall survive termination of this Agreement.
8.1 People Diagnostix shall use commercially reasonable efforts to make the Service available on a twenty-four hours per day, seven days per week (24x7) basis during the Term of this Agreement, except for:
8.1.1 Scheduled system back-up or other on-going maintenance as required and scheduled in advance by People Diagnostix; or
8.1.2 For any unseen cause beyond People Diagnostix’s reasonable control, including but not limited to internet service provider or communication network failures, or Force Majeure events as provided in clause 18.
9.1 People Diagnostix will monitor performance indicators on the systems and network infrastructure (its own and that of third party service providers) in order to assess the overall performance of its Services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Services.
10. Maintenance and Support
10.1 People Diagnostix shall maintain the Software and the Services and provide patches and fixes where necessary at no extra cost.
10.2 The maintenance provision in clause 10.1 shall not include major software releases, new versions of the Software, additional functionality, or custom programing, which People Diagnostix, at its sole discretion, may provide at an additional cost and as otherwise agreed between the Subscriber and People Diagnostix.
11. Default and Breach
11.1 The Subscriber will be in default of this Agreement if it fails to make any payment when due, and fails to cure the default within fourteen (14) days following receipt of Written notice thereof by People Diagnostix.
11.2 In addition to clause 11.1 above, either Party will be in default of this Agreement if the Party is in material breach of this Agreement and fails to cure such breach within fourteen (14) days following receipt of Written notice thereof from the other Party.
11.3 If a Party is in default, then the non-breaching Party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in for this Agreement.
11.4 In the event one Party breaches or attempts to breach any of the provisions of this Agreement, the other Party shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach.
11.5 For the avoidance of doubt, a breach by an End User or Administrator shall constitute a breach by the Subscriber.
12.1 If a Subscriber terminates this Agreement lawfully and in terms of this Agreement, People Diagnostix will refund to the Subscriber the fraction of the total Seat Payment paid calculated as follows. The numerator shall be the number of days remaining in the Subscription Term following the date of termination and the denominator shall be the total number of days of the Subscription Term regardless of whether any Seat was purchased or allocated to an End User after the commencement of the Subscription Term or not allocated to an End User at all. Refunds will be processed immediately and paid to an account of the Subscriber’s choice.
13. Changes by Us to Your Services
13.1 PEOPLE DIAGNOSTIX MAY CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME AFTER GIVING SUBSCRIBERS THIRTY (30) DAYS’ WRITTEN NOTICE. AFTER RECEIVING NOTICE A SUBSCRIBER MAY CANCEL THEIR SUBSCRIPTION OR AGREE TO THE CHANGE. IF A SUBSCRIBER AGREES, THEY NEED TAKE NO ACTION. IF HOWEVER, A SUBSCRIBER DOES NOT AGREE, THE SUBSCRIBER MUST NOTIFY PEOPLE DIAGNOSTIX WITHIN THIRTY (30) DAYS OF THE DATE OF RECEIVING THE NOTICE OF CHANGE AND TERMINATE THIS AGREEMENT. IF A SUBSCRIBER FAILS TO TERMINATE THE SERVICES IN THESE CIRCUMSTANCES, THEY WILL BE DEEMED TO HAVE AGREED TO THE CHANGE WHICH WILL BECOME PART OF THE AGREEMENT BETWEEN THE SUBSCRIBER AND PEOPLE DIAGNOSTIX.
14.1 In addition to and in no way limiting the requirements relating to People Diagnostix IP in clause 7 above, each Party shall use reasonable efforts (but in no case less than the efforts used to protect its own proprietary information) to protect all proprietary, confidential and/or non-public information pertaining to or in any way connected to the Software, the Service, the other Party’s financial, professional, other business affairs, and this Agreement (Confidential Information).
14.2 Neither Party shall disclose or publicise the Confidential Information without the prior Written Consent of the other Party.
14.3 Each Party shall use reasonable efforts (but in no case less than the efforts used to protect its own proprietary information) not to disclose and not to use the Confidential Information for its own benefit or for the benefit of any other person or third party in any manner inconsistent with this Agreement.
or for the benefit of any other person or third party in any manner inconsistent with this Agreement. 14.4 The terms of confidentiality and non-disclosure in this Agreement shall terminate five (5) years from the date of termination of this Agreement.
14.5 The restrictions on disclosure shall not apply to information which was (i) generally available to the public at the time of disclosure, or later available to the public other than through the fault of the receiving Party, (ii) already known to the receiving Party prior to disclosure pursuant to this Agreement, (iii) obtained at any time lawfully from a third party under circumstances permitting its use or disclosure to others, or (iv) required by law or court order to be disclosed.
15. Privacy, Personal Information and Data Privacy
15.1 YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT THE INFORMATION PROVIDED TO PEOPLE DIAGNOSTIX BY THE YOU THE SUBSCRIBER (INCLUDING END USERS AND ADMINISTRATORS), THROUGH THE SOFTWARE AND SERVICES AND/OR THIRD PARTIES, IS NECESSARY FOR THE PROVISION OF THE SERVICES.
15.3 YOU THE SUBSCRIBER (INCLUDING END USERS) ACKNOWLEDGE AND AGREE FURTHER THAT:
15.3.2 THE SUM OF ALL THE ALL INFORMATION DERIVED FROM THE SOFTWARE AND SERVICES AND/OR THIRD PARTIES AND PERSONAL DATA, AS WELL AS THE AGGREGATED INFORMATION WHICH RESULTS FROM PROCESSING, ANAYLSING AND IMPROVING THE SERVICES IS INTENDED TO IMPROVE PSYCHOSOCIAL RISK MANAGEMENT AND EMPLOYEE MENTAL HEALTH.
16. Limited Warranty
16.1 People Diagnostix warrants that:
16.1.1 it has the power, authority, right, interest and title in the Services and Software and other relevant materials in order to grant the Services and Software and other rights to the Subscriber under this Agreement;
16.1.2 the Services and Software will conform to functional and performance specifications;
16.1.3 the Services and Software will be free from any viruses, trojan horses, worms, spyware or other malicious code (collectively, “Malicious Code”) except for any Malicious Code contained in End User or Administrator uploaded information or otherwise originating from the Subscriber;
16.1.4 it is able to provide the Services and the Services will be performed in a professional manner with due care, skill and diligence; and
16.1.5 it will comply at all times with the Privacy Act 1988 (Cth) (as amended) (“Privacy Act”) to extent it deals with personal information or sensitive information (as defined in the Privacy Act) in the provision of the Services or otherwise in connection with this Agreement.
16.2 The benefits of the Services to Subscriber depend on its use of the Services (including its End Users’ use of the Services).
17. Limitation of Remedy and Liability
17.1 The Subscriber represents that it accepts sole and complete responsibility for:
17.1.1 Its use of the Services (including the use by its End Users);
17.1.2 Results obtained from the Services; and
17.2 TO THE MAXIMUM EXTENT PERMITED BY APPLICABLE LAW, IN NO EVENT SHALL PEOPLE DIAGNOSTIX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITAVE, EXEMPLRY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PEOPLE DIAGNOSTIX HAS BEEN ADVISED OF SUCH DAMAGES.
17.3 In any event, under no circumstances shall People Diagnostix be liable for any loss, costs, expenses, or damages to the Subscriber in an amount exceeding the Subscription Fee actually paid to People Diagnostix by the Subscriber for the previous twelve (12) months.
18. Force Majeure
18.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY FAILURE TO PERFORM OR FOR A DELAY IN PERFORMING AN OBLIGATION UNDER THIS AGREEMENT IN THE EVENT AND TO THE EXTENT THAT SUCH FAILURE OR DELAY IS CAUSED BY FORCE MAJEURE.
18.2 For the purposes of this Agreement, force majeure will mean any circumstance which:
18.2.1 is beyond the reasonable control of the party giving notice of force majeure (affected party) and for which it is not responsible; and
18.2.2 is not a circumstance which the affected party could by the exercise of the standard of care and skill which could reasonably be expected that party, have avoided.
18.3 Subject to the above force majeure includes but is not limited to flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, computer virus, and malware resulting in Denial of Service Attacks (DoS and DDoS), ransomware or acts of God.
18.4 The affected party will give notice thereof to the other immediately upon the occurrence of any event of force majeure.
19. Notices and Demands
19.1 Any notice required or permitted to be given pursuant to this Agreement will be valid and effective only if in Writing and sent to the other party’s Address For Service.
19.2 Any notice to a party:
19.2.1 Sent by pre-paid registered post (by airmail if appropriate) will be deemed to have been received on the second business day after posting (unless the contrary is proved).
19.3 Notwithstanding anything to the contrary herein contained, a written notice of communication actually received by party will be an adequate written notice for communication to it notwithstanding that it was not sent or delivered in accordance with this Agreement.
20. Governing Law
21.1 People Diagnostix, the Subscriber (including its End Users) will observe and comply with all applicable laws.
22.1 If any term is void, unenforceable, or illegal, the term may be severed from the Agreement and will not affect the validity of the rest of this Agreement, providing it does not change its purpose.
23.1 Any waiver which People Diagnostix may allow the Subscriber will not affect or substitute any of People Diagnostix’s rights against the Subscriber.
24.1 No Party may delegate its duties under this Agreement or assign its rights under this Agreement, in whole or in part without the other party’s prior written consent.
25. No Partnership or Agency
25.1 Nothing in this Agreement will be construed as creating a partnership or agency relationship between the Parties and no Party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
26. Entire Agreement
26.1 This Agreement is the entire agreement between the Parties on the subject.
27.1 A word defined in this Agreement starts with a capital letter unless the context indicates otherwise. All headings are inserted for reference purposes only and must not affect the interpretation of this Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes an individual, body corporate and association and a reference to a party includes the party’s agents, successors and permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply.
|Name||People Diagnostix Pty Ltd|
|Physical address and the address for receipt of legal service of documents||Enterprise Unit 3, Suite 4, 9 De Laeter Way, Technology Park, Bentley, Western Australia, 6102|
|Postal address||PO Box 63, Rockingham, Western Australia, 6968|
|Phone numbers||+61 (0) 1300 739 426|
|ABN||16 642 096 142|
|Directors||J van Schie, C van der Veen|