Software End User License Agreement - AttuneOps


Updated on : 10-Feb-2021

1	Acceptance of this EULA 
1.1	AttuneOps AU Pty Ltd (ABN 48 643 615 025) (we, us or our) owns or licenses the Attune software, including all instructions in hard copy or electronic form and any update, modification or release of any part of the preceding (Software). 
1.2	This End User Licence Agreement (EULA) applies to the company, entity or organisation (you or your) who is using or downloading the Software or the Support Services, or who is entering into a legal agreement with the Reseller to purchase a licence for the Software (Customer Agreement) and to your Personnel.
1.3	You accept this EULA by entering into the Customer Agreement or by downloading, using or accessing the Software.
1.4	This EULA will commence on the date on which your Customer Agreement commences (Commencement Date) and will continue unless terminated in accordance with clause 10 (the Term).
1.5	By accepting this EULA you warrant to us that you have the legal capacity to enter into a legally binding agreement.
2	Use restrictions 
2.1	You must not access or use the Software except as permitted by the Customer Agreement, if applicable. Without limiting the foregoing, you must not and must not permit any other person to:
(a)	use the Software in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights and privacy rights;
(b)	use the Software to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; 
(c)	use the Software in any way that damages, interferes with or interrupts the supply of the Software;
(d)	introduce malicious programs into our hardware and software or Systems, including any viruses or malware through any channel;
(e)	compromise the physical and administrative security of the Software, including by allowing others to access your/their account, password or authentication details;
(f)	use the Software to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(g)	use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Software;
(h)	use the Software to circumvent user authentication or security of any of your networks, accounts or hosts or those of any other third party;
(i)	decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the Software;
(j)	provide, disclose, divulge, make available to or permit use of any part of the Software by any third party; 
(k)	write or develop any software or create derivative works based upon the Software, or our confidential information; 
(l)	remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of the Software; or
(m)	remove, obliterate, or obscure from view any branding, copyright, trade mark or confidentiality notice or legend appearing on or within the Software.
3	Your warranties
3.1	You warrant and agree that:
(a)	you have reviewed and understand the terms of this EULA and our Privacy Policy; 
(b)	you have or will acquire all hardware, software and capabilities which are necessary to access and use the Software and, if applicable, our Support Services; 
(c)	you will use the Software and, if applicable, our Support Services in accordance with this EULA;
(d)	all information and documentation that you provide to us in connection with this EULA is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Software and any Support Services the Reseller engages us to provide to you;
(e)	in entering into this EULA, you have not relied upon any representation, warranty or inducement by us nor is any representation, warranty or thing made or done by us to be inferred, incorporated or implied into this EULA;
(f)	the provision of the Software and, if applicable, our Support Services may be contingent on, or impacted by, Third Party Inputs;
(g)	the Software and, if applicable, our Support Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services; 
(h)	we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you; and
(i)	you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Software and, if applicable, our Support Services to be provided in accordance with this EULA, at your cost, and for providing the Reseller and/or us with the necessary consents, licences, authorities and permissions.   
4	Intellectual Property Rights
4.1	The Parties agree that nothing in this EULA constitutes a transfer or assignment of any Intellectual Property Rights.
Our Intellectual Property Rights
4.2	You agree that we own all Intellectual Property Rights in:
(a)	Our Materials;
(b)	New Materials or Improvements; and
(c)	any Feedback,
and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.  
4.3	In the use of any Intellectual Property Rights in connection with this EULA, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. If we reasonably suspect any Intellectual Property Breach, we may suspend your access to the Software and, if applicable, the provision of our Support Services until the issue is resolved. 
4.4	You also agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
Your Materials 
4.5	We agree that you own all Intellectual Property Rights in Your Materials.
4.6	You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for your use and enjoyment of the Software and, if applicable, our Support Services subject to the terms of this EULA and the Customer Agreement.
4.7	You represent and warrant that: 
(a)	you have obtained all necessary rights, releases and permissions to provide all Your Materials to us; and 
(b)	Your Materials (and their transfer to and use by us) as authorised by you, under this EULA or by the Reseller under a Resale Order does not violate any Laws or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity.
4.8	If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this EULA or the Resale Order, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
5	Analytics
5.1	Despite anything to the contrary in this EULA, the Resale Order or elsewhere, we may monitor, analyse and compile information based on and/or related to your use or the use of an Authorised User of the Software or your use of our Support Services, in an aggregated and anonymised format (Analytics). 
5.2	We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
6	Privacy
6.1	Each Party will at all times comply with legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this EULA.
6.2	All Personal Information received by us in connection with your use of the Software and, if applicable, our Support Services, this EULA or the Resale Order (including where it is received from an Authorised User) will be deemed to have been disclosed to us by you and the Reseller. Without limiting this clause 6, you may only disclose Personal Information to us if you are authorised by Law to collect the Personal Information and to use or disclose it in the manner required.
6.3	We agree to handle any Personal Information you disclose to us in accordance with our Privacy Policy.
7	Third party licences 
7.1	You agree that the provision of the Software and our Support Services may be contingent on, or impacted by, Third Party Inputs (for example open source code or other third party software and applications).
7.2	To the extent that the Software, or any part of the Software, is licensed under an open source software arrangement: 
(a)	the terms of the Open Source Licence will apply to the Software; and 
(b)	the provisions of the Open Source Licence will take priority over the remainder of the EULA in the event and to the extent of any inconsistency.
7.3	To the extent you require any software, hardware and/or services to use and enjoy the Software and such software, hardware and/or services are not required to be provided by us under the Resale Order, you and/or the Reseller are responsible for:
(a)	the purchase of;
(b)	the requirements of; and
(c)	the licensing obligations (and compliance with those), 
for the third party software, hardware or services. 
8	Australian Consumer Law
8.1	Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Software and, if applicable, our Support Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this EULA excludes your Statutory Rights as a consumer under the ACL.
8.2	You agree that our Liability for the Software and our Support Services is governed solely by the ACL and this EULA. 
8.3	Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Software and our Support Services) are provided to you without warranties, representations and guarantees of any kind, unless expressly stipulated in this EULA. 
9	Our Liability
9.1	Despite anything to the contrary, to the maximum extent permitted by law: 
(a)	we will not be liable for any Consequential Loss;
(b)	a Party’s liability for any Liability under this EULA will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure to mitigate that Liability; and
(c)	our aggregate liability for any Liability arising from or in connection with this EULA will be limited to $100.  
9.2	Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with: 
(a)	loss of, or damage to, any property or any injury to or loss to any person;
(b)	the Computing Environment;
(c)	any breach by you (or your Personnel) of this EULA or any Laws;
(d)	your (and your Personnel’s) and the Reseller’s acts or omissions;
(e)	any use or application of the Software by a person or entity other than you or an Authorised User;
(f)	any claim by an Authorised User;
(g)	any Third-Party Inputs; and
(h)	any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).
9.3	To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 4.
9.4	You acknowledge and agree that:
(a)	you are responsible for your use of the Software;
(b)	you use the Software and any associated programs and files at your own risk;
(c)	you are responsible for the acts and omissions of your Authorised Users as if those acts and omissions were your own;   
(d)	we do not warrant that the Software is error-free or will be uninterrupted;
(e)	from time to time, we may make certain services and/or features available to you for use which are still in their beta stage. These beta stage services have not been fully tested and are provided on an ‘as is’ basis; and, to the fullest extent permitted by Law, we make no representations, warranties or guarantees in relation to such beta stage services; and
(f)	we may pursue any available equitable or other remedy against you if you breach any provision of this EULA.
10	Termination of this EULA
10.1	If you do not wish to continue using the Software, you should consider your options for termination under the Customer Agreement. 
10.2	If the Customer Agreement expires or is terminated:
(a)	this EULA will also terminate and we will terminate your access to the Software and, if applicable, the provision of our Support Services; or
(b)	we will be in contact with you and, if you would like the Software and the Support Services to continue beyond the termination date, you will need to enter into an agreement for these services with us directly, either via a new agreement or in some cases we may agree to the novation of the Customer Agreement to us. 
11	Your access to and use of the Software
11.1	You agree that we may, with 20 days’ notice to you suspend (either temporarily or permanently) your access to the Software at any time, where: 
(a)	without prejudicing any other right or remedy:
(i)	you are in breach or we reasonably suspect that you are misusing or are otherwise in breach of this EULA; or 
(ii)	the Reseller is in breach of any agreement that they have with us for the supply of the Software (and any Support Services) to you; or
(b)	we are required to do so by Law or by any authority.   
11.2	Termination of this EULA will not affect any rights or liabilities that a Party has accrued under this EULA.
12	Disputes 
12.1	Neither Party may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this EULA (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. 
12.2	If the parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either Party may ask the Queensland Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties. 
12.3	If the parties are unable to reach a resolution through mediation, either Party may refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration (ACICA), with such arbitration to be conducted in Brisbane, Queensland, in English and in accordance with the ACICA Rules. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.
12.4	Nothing in this clause 12 will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. 
13	General
13.1	You agree that we may advertise or publicise the broad nature of our provision of the Software to you, including by placing your name and logo on our website or in our promotional material. 
13.2	Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to us at and 65 Gilbert St, Adelaide St SA 5000, Australia and to you on the contact details provided to us by the Reseller. A Party may change its notice details by written notice to the other Party. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
13.3	Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this EULA does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing. 
13.4	If a provision of this EULA is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this EULA without affecting the validity or enforceability of the remainder of that provision or the other provisions.
13.5	We may assign, transfer, novate or otherwise deal with all or any of our rights or obligations under this EULA without your prior written consent. You may not assign, transfer or otherwise deal with all or any of your rights or obligations under this EULA without our prior written consent.  Any purported dealing in breach of this clause by you is of no force or effect. 
13.6	We may vary this EULA with reasonable advance notice to the Reseller who must then promptly notify you of the varied EULA.
13.7	This EULA is governed by the laws of Queensland, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Software may be accessed in Australia and overseas. We make no representation that the Software complies with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Software from outside Australia, you do so at your own risk and are responsible for complying with the Laws in the place you access the Software.
13.8	Clauses 2, 3, 4, 5, 8, 9, 10 and 12 will survive termination or expiry of this EULA.
14	Definitions 
Capitalised words have the meaning given in text or as set out below. 
Authorised User means a user permitted to access and use the Software under your account; 
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Queensland, Australia;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Feedback means any idea, suggestion, recommendation or request by you or an Authorised User, whether made verbally, in writing, directly or indirectly, in connection with the Software or our Support Services;
Force Majeure Event means an event which is beyond our reasonable control (including but not limited to fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, pandemic, Government sanctioned restrictions and orders, transportation embargo, and strike by employees of a third person whether known or unknown at the time of entering into this EULA);
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party or the Reseller (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term;
Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel): 
(a)	copying, altering, enhancing, adapting or modifying any of our Intellectual Property; 
(b)	creating derivative works from our Intellectual Property; 
(c)	providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party; 
(d)	assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights;
(e)	reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
(f)	otherwise using or exploiting our Intellectual Property for purposes other than as expressly stated in this EULA (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties);
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this EULA, the Resale Order, the provision of the Software or the provision of our Support Services, and includes the Privacy Act 1988 (Cth); 
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving the Reseller, a third party or a Party to this EULA or otherwise;
Moral Rights has the meaning given in the Copyright Act 1968 (Cth);
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel, or the Reseller in connection with the Software (including any machine learning algorithms output from the Software), whether before or after the date of this EULA;
Open Source Licence means the open source software licence we use;
Our Materials means all data, work, models, processes, technologies, strategies, materials, information, documentation and services (including our Intellectual Property and the Software) generated by the Software as a result of your, your Personnel’s, or the Reseller’s use of the Software or that we may provide to you under this EULA or the Resale Order, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws; 
Party means a party to this EULA;
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other applicable privacy law;
Privacy Policy means any privacy policy set out at 17-Feb-2021;
Support Services means incident support, assistance with issues during installation, assistance with issues during upgrades, guidance around implementation and configuration, and integration support with other AttuneOps products. Requests for the Support Services may be made by you via our service desk, or by the Reseller on your behalf. Our service desk is open 24 hours a day, 7 days a week and we will use reasonable endeavours to respond to your requests within a reasonable time;
Resale Order means the order placed by the Reseller on your behalf and accepted by us for the supply of the Software and, if applicable, our Support Services;
Reseller means the legal entity which sells you the Software and the Support Services;
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;
Third Party Inputs means third parties or any software, goods and services provided by third parties, including Open Source Licences, customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Software and/or our Support Services may be contingent on, or impacted by; and
Your Materials means all data, work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this EULA, or inputted by or you or your Personnel or an Authorised User into the Software. Your Materials include any development, modification, adaptation or improvement of Your Materials.