1.1 API Software Pty Ltd t/a Canyou Software (ABN 57 650 764 195) (us, we or our) own the cloud-based solution called Canyou” including all instructions in hard copy or electronic form and any update, modification or release of any part of the solution (Services).
1.2 This End User License Agreement (EULA) applies to: (a) the company, entity or organisation who is the primary account holder of the Services (Account Holder); (b) any individual who is invited by the Account Holder to act as an end user for the Account Holder (User Account) in accordance with the terms of your Account Holder’s agreement with us (Account Holder Agreement); and (c) any other person or entity using or accessing the Services, (jointly and severally known as you or your).
1.3 You accept this EULA by clicking the box indicating acceptance when requested by us or by using or accessing the Services.
1.4 This EULA will commence on the date on which you start using the Services and will continue until the date that you permanently stop using the Services and/or your User Account is terminated in accordance with clause 10 (the Term).
1.5 By accepting this EULA, creating a User Account and/or accessing and/or using the Services, you warrant to us that you have the legal capacity to enter into a legally binding agreement.
Licence Subject to your compliance with the terms of this EULA, we grant you a non-exclusive, non-transferable, non-sublicensable, personal and revocable licence to access and use the Services for the Term as permitted under the Account Holder Agreement (Licence).
Restrictions on use
3.1 You must not access or use the Services except as permitted by the Licence and you must not and must not permit any other person to: (a) use the Services in any way that breaches any applicable Laws or infringes any person&apops;s rights, including Intellectual Property Rights (and privacy rights); (b) use the Services in any way that damages, interferes with or interrupts the supply of the Services; (c) introduce malicious programs into our hardware and software or systems, including viruses, worms, trojan horses and e-mail bombs; (d) allow others to access or use your/their Account, password or authentication details; (e) continue to use the Services after termination of your employment and/or relationship with the Account Holder; (f) use the Services to carry out security breaches or disruptions of a network. This includes 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 Services; (h) use the Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of members or suppliers; (i) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; and (j) send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person&apops;s privacy (such as by way of identity theft or "phishing").
Intellectual Property Rights
5.1 The Parties agree that nothing in this EULA constitutes a transfer or assignment of any Intellectual Property Rights. Our Intellectual Property Rights
5.2 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.
5.3 In the use of any Intellectual Property Rights in connection with this EULA, you agree that you must not commit any Intellectual Property Breach.
5.4 You also agree that: (a) 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 of any Feedback; and (b) you must not whether directly or indirectly, without our prior written consent: (1) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Services or otherwise attempt to discover any part of the source code of the Services; (2) use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services; (3) use the Services in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights; (4) publish, post, upload or otherwise transmit data that contains any viruses or malware or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person; (5) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (6) unless authorised under this agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method; (7) rent the use of the Services to any third parties; (8) take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise; (9) remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; (10) make any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Services or any other matter; or (11) use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing. Data
5.5 You agree that under the Account Holder Agreement, the Data belongs to the Account Holder and as such we disclose the Data to the Account Holder in accordance with the Account Holder Agreement.
5.6 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Data during the Term (and for a reasonable period after the Term), to: (a) supply the Services to you (including to enable you to access and use the Services); (b) diagnose problems with the Services; (c) enhance and otherwise modify the Services; (d) perform Analytics; (e) develop other services, provided the Data is de-identified; and (f) as reasonably required to perform our obligations under this EULA.
5.7 You acknowledge and agree that: (a) you must, at all times, ensure the integrity of the Data and that the collection and use of the Data is compliant with all Laws; (b) we assume no responsibility or Liability for the Data. You are solely responsible for the Data and the consequences of using, disclosing, storing or transmitting it.; and (c) the operation of the Services is reliant on the accuracy of the Data, and the provision of inaccurate or incomplete Data by you may affect the use, output and operation of the Services.
5.8 You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all Data to us and to grant the rights granted to us in this EULA; (b) the Data is accurate and complete; (c) the Data (and its transfer to and use by us) as authorised by you, under this EULA does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and (d) any use, collection and disclosure authorised in this EULA is not inconsistent with the terms of any applicable privacy policies.
6.1 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (a) does not contain identifying information; and (b) is not compiled using a sample size small enough to make the underlying Data identifiable.
6.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
7.1 You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to you and all matters relating to the Data.
7.2 Without limiting this clause 7, you may only disclose Personal Information in your control to us, if: (a) you are authorised by privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this EULA; (b) you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and (c) where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.
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 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 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 Services) are provided to you without warranties, representations and guarantees of any kind, unless expressly stipulated in this EULA.
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, and must not exceed in aggregate for all claims, $1.
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) loss of use and/or loss or corruption of data including Data; (c) the Computing Environment; (d) any breach by you of this EULA or any Laws; (e) any reliance on the Services by you, including for the purposes of complying with any obligations on you (including under any Laws); (f) your acts or omissions; (g) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this EULA; (h) any Third-Party Inputs; and (i) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or 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 5 (Intellectual Property), your use of the Services contrary to this EULA, including from any claim relating to the Data.
9.4 You acknowledge and agree that: (a) you are responsible for your use of the Services; (b) you use the Services and any associated programs and files at your own risk; (c) we do not warrant that the Services are error-free or will be uninterrupted; and (d) we may pursue any available equitable or other remedy against you if you breach any provision of this EULA.
Termination of your User Account
10.1 Your Account Holder may terminate your User Account and/or your access at any time in their sole discretion.
10.2 If the Account Holder Agreement is suspended or terminated, we may also suspend your User Account, your access or terminate your User Account.
10.3 We may, with notice to you, immediately suspend and/or terminate your User Account at any time, including if we believe you are misusing the Services or otherwise in breach of this EULA.
11.1 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 the other Party to seek (in good faith) to resolve the Dispute.
11.2 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 Law Society of New South Wales 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.
11.3 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 Sydney, New South Wales, 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.
11.4 Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
12.1 We reserve the right at any time and from time to time to change or remove features of the Services.
12.2 Any notice given under this EULA must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and 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).
12.3 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.
12.4 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.
12.5 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.
12.6 We may vary this EULA with notice to you via email or via a notification within your Account Holder and/or User Account notices.
12.7 This EULA is governed by the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts.
12.8 Clauses 2, 4, 5, 6, 7, 8, 9, 10 and 11 will survive termination or expiry of this EULA.