The terms of this Software Products and Services Agreement (“Agreement”) govern the provision of Affinda’s Software and Software Services, and are accepted by You whenever you download, access or otherwise use any such Software and/or Software Service.
In this Agreement:
- “You” means (i) your company if you are using Products in your capacity as an employee or agent of such entity, or (ii) otherwise you as an individual.
- “Affinda” or “we” means Affinda Holdings Pty Ltd (ACN 639 058 352) of Level 4, 180 Flinders St, Melbourne VIC 3000, Australia, and any Related Body Corporate of it.
Other capitalised terms used in this Agreement are defined in clause 1.1.
We may update the terms of this Agreement from time to time and will maintain the most up-to-date version at https://www.affinda.com/product-terms/. Please visit this website regularly to ensure You are aware of Your rights and obligations. Your continued use of any Product will signify your acceptance of the latest version of this Agreement.
These meanings apply unless the contrary intention appears:
Affinda Systems means any information technology systems (including websites) owned or controlled by Affinda.
Business Day means a day not being a Saturday, Sunday or public holiday in Melbourne, Australia.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Confidential Information means, in relation to Affinda, all information in any form,
but does not include information which is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed to Affinda.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means any customer or client of Yours.
Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Open Source Software means Software (or a component of Software) which is subject to an open source software licence.
Personal Data means Your Data to that extent that such data contains “personal information” as that term is defined in the Privacy Act 1988 (Cth).
Product means Software and/or a Software Service (as the context requires).
Related Body Corporate has the meaning given in the Corporations Act.
Software means any Affinda software that You order and/or download from Affinda, or which is otherwise used by You or provided to You by Affinda, and includes any Updates to the Software, Supplementary Software and Embedded Software.
Software Service means an online software service provided by Affinda.
Supplementary Software means add-ons, plug-ins or internet-based components of Software provided by Affinda (but excluding third party developed software or components).
Trial Software means Software provided to You for trial or evaluation purposes only.
Unlawful Material means any material which is (or may reasonably considered to be) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, and includes (without limitation) any such material that:
(a) facilitates illegal activity;
(b) depicts sexually explicit images;
(c) promotes unlawful violence;
(d) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(e) is otherwise illegal or causes damage or injury to any person or property.
Updates means all new versions of and patches, fixes, upgrades and other updates for the Products which are provided to You under or in connection with this Agreement.
User means You or Your employees.
Virus means any thing or device (including any software, code, file or program) which may:
(a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Your Data means data inputted into the Product by You or Users, including all results from processing such data and any Personal Data.
Your System means any information technology systems owned or controlled by You.
1.2 References to certain general terms
Unless the contrary intention appears, a reference in this Agreement to:
(a) (variation or replacement) a document (including this Agreement) includes any variation or replacement of it;
(b) (clauses, annexures and schedules) a clause, Schedule, Annexure, Attachment or Exhibit is a reference to a clause in, or a Schedule, Annexure, Attachment or Exhibit to, this Agreement;
(c) (references to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(d) (law) law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
(e) (singular includes plural) the singular includes the plural and vice versa;
(f) (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
(g) (executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors and substitutes (including, persons taking by novation) and assigns;
(h) (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;
(i) (dollars) an amount of money is a reference to the lawful currency of Australia or the United States of America (or the case may be);
(j) (calculation of time) a period of time that dates from a given day or the day of an act or event is to be calculated exclusive of that day;
(k) (other grammatical forms) where a term is defined its other grammatical forms have the corresponding meaning;
(l) (reference to a day) a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending twenty-four (24) hours later; and
(m) (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind.
Headings are included for convenience only and are not to affect the interpretation of this Agreement.
Subject to Your full compliance with this Agreement at all times:
(a) We give You a limited, personal, commercial, non-exclusive, non-sublicensable, non-assignable license to use the Software as provided to You by Affinda for period determined by Affinda, and for the sole purpose of enabling You to use and enjoy the benefit of the Software as provided by Affinda (“Permitted Purpose”);
(b) the Software may be installed on a maximum number of two (2) devices per User and You may reproduce the Software solely for this purpose. If additional Users are required to use the Software, You must place an order for those additional Users; and
(c) You must not remove, hide, manipulate, alter or otherwise modify any Affinda branding, logo, name or any other intellectual property with respect to the Software in the comparison viewer.
2.2 Trial Software
We may offer You Trial Software from time to time. Where we provide You with any Trial Software:
(a) You may only use the Trial Software for internal evaluation purposes for the trial period specified by Affinda;
(b) only a limited number of Users (as specified by Affinda) may use the Trial Software;
(c) You acknowledge that Trial Software may not be fully functional;
(d) after the trial period, You must delete all copies of the Trial Software on Your Systems; and
(e) notwithstanding any other provision of this Agreement, we do not provide any warranty, indemnity or support in connection with any Trial Software.
2.3 Open Source Software
Certain Software may include Open Source Software, in which case we may supply the Software with the applicable open source software licence. To the extent required by that licence, the terms of that licence will apply to that Open Source Software in lieu of the terms of this Agreement, including any provisions governing access to source code, modifications or reverse engineering.
2.4 Embedded Software
Third party software embedded in or provided with Software (“Embedded Software”) may be provided with third party terms applicable to Your use of that Software. Where no such terms are provided, then You agree that:
(a) You may only use Embedded Software in conjunction with the Software solely for the Permitted Purpose (and not otherwise);
(b) You must not install, access, configure or use any Embedded Software (including any API, tool, database or other component of any Embedded Software) separately from the Software, whether for production, technical support or any other purpose, or otherwise attempt to gain direct access to any Embedded Software component;
(c) notwithstanding any other provision of this Agreement, You must not display, modify, reproduce or distribute any Embedded Software including but not limited to any source code provided with that Software;
(d) You must not “benchmark” or otherwise analyse performance information for individual Embedded Software elements;
(e) You acknowledge that third party licensors retain ownership of all Intellectual Property Rights in Embedded Software and that they are intended third party beneficiaries of this Agreement for this purpose and may enforce this Agreement directly against You. You will be responsible to the applicable third party licensor for any loss, claim or damage suffered or incurred by that third party as a result of Your breach of this Agreement. Affinda holds the benefit of the terms of this Agreement which apply to Embedded Software on trust for the applicable third party licensors to facilitate their direct enforcement (and for its own benefit); and
(f) Embedded Software may include or be accompanied by third party technology that may be appropriate or necessary for use with some Embedded Software. Such technology may be specified by Affinda) and is licensed to You only and exclusively for use with the Software and subject to any third party licence terms provided.
3.1 Supply of Software Services
We will, if applicable, use commercially reasonable efforts to provide You the Software Service and You must:
(a) use all reasonable endeavours to prevent any other unauthorised access to or use of the Software Service;
(b) promptly notify Affinda if You become aware of any such unauthorised access or use; and
(c) not access, store, distribute or transmit any Virus or Unlawful Material when using or accessing the Software Service.
You will own all rights, title and interest in Your Data and You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
You grant Affinda a royalty-free, non-exclusive, irrevocable licence to use and reproduce Your Data or other data inputted by You or Your Users in the course of using the Product(s) in order to provide the Product(s), improve or enhance the Product(s) and/or for other development purposes.
4.3 Loss or damage to Your Data
In the event of any loss of, or damage to, Your Data, we will use reasonable commercial endeavours to restore Your Data from the latest back-up of Your Data maintained by Affinda. We will not be responsible for any loss, damage or disclosure of Your Data caused by any third party or not otherwise within its reasonable control. You are responsible for backing up any data you input to a Software Service.
4.4 Personal Data
(a) We will process Personal Data only in accordance with the terms of the Agreement and any lawful instructions reasonably given by You from time to time.
(b) We will comply with the Australian Privacy Principles to the extent that they apply to the provision of the Software or Software Services, including by taking reasonable steps to ensure that Personal Data is protected from misuse, loss and interference, and from unauthorised use, disclosure or modification.
(c) Where relevant in relation to applicable privacy obligations, You acknowledge that You are the data controller and Affinda is the data processor of Personal Data for the purpose of privacy laws.
(d) You acknowledge that Personal Data may be transferred to or stored outside Your jurisdiction as part of the Software Service and You warrant that You have complied with all laws relating to privacy in respect of the disclosure or transmission of Personal Data to Affinda, including obtaining any required consents.
The obligations set forth in this clause 5 apply in addition to, and do not derogate from, Your obligations described elsewhere in this Agreement.
5.1 Access to and use of Product
You must at all times:
(a) use all reasonable endeavours to prevent any other unauthorised access to or use of the Product;
(b) promptly notify Affinda if You become aware of any breach or contravention of clause 5.1(a);
(c) not access, store, distribute or transmit any Virus or Unlawful Material when using or accessing the Product; and
(d) except as expressly provided by this Agreement, assume all responsibility for results obtained from the access or use of any Product, or any component thereof, and for all conclusions drawn from that access or use.
5.2 Other obligations
You must at all times:
(a) provide Affinda with all necessary co-operation and access to such information that we may reasonably require, including Your Data, security access information and configuration information;
(b) comply with all applicable laws and regulations;
(c) in a timely and efficient manner, carry out all responsibilities set out in the Agreement and any other responsibilities that we reasonably require;
(d) ensure that Users access and use the Products in accordance with the Agreement;
(e) ensure that Your System and networks comply with relevant specifications provided by Affinda from time to time;
(f) ensure that You and each User keeps a secure password for their use of the Product and keeps such password confidential; and
(g) secure the performance by third parties of any obligations to You which affect Affinda’s ability to provide the Products.
5.3 User compliance
You are responsible for the compliance of Users with this Agreement, and You are responsible for the acts and omissions of any Customers as if those acts or omissions were Yours.
6.1 TitleYou agree that:
(a) all Intellectual Property Rights in and to the Products, including any Updates, will remain owned by Affinda (or its licensors);
(b) You will do all things that we reasonably request in order to perfect such ownership; and
(c) You must not delete, obscure or modify any copyright or other proprietary rights notices or disclaimers displayed on or part of any Product.
From time to time, You may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Affinda, including sharing User Modifications or in the course of receiving support services (“Feedback”). we may in connection with any Product freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Affinda;s right to independently use, develop, evaluate, or market Products, whether incorporating Feedback or otherwise.
Except to the extent that the following restrictions are void under applicable law or expressly permitted by this Agreement, You must not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of any Product in any form or media or by any means;
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any Product;
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit all or any part of any Product, or otherwise obtain, assist or make all or any part of any Product available to any third party except Authorised Users;
(d) use in any Product in any situation where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). The User is not licensed to use any Product in, or in conjunction with, High Risk Use. High Risk Use is strictly prohibited, and includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, and medical devices;
(e) modify or alter any licence protection mechanisms or try to circumvent them or the usage rules they are designed to enforce; or
(f) use any Product through automated means.
You agree that upon request, You must:
(a) provide such information for the purposes of assessing and enhancing Your use of the Software, including information with respect to:
(i) the number of Users who have access to and/or have accessed the Software on Your Systems,
(ii) the number of the documents that Users have used by accessing the Software on Your Systems, and
(iii) the file type and size for each document referred to in clause
(b) allow Affinda (or any third party nominated by Affinda) to audit Your use of the Software in order to determine whether You are complying with all of the requirements set out in this Agreement. You must provide access to Your Systems, systems, facilities, personnel, information and records as reasonably required for the purposes of carrying out such an audit.
7.1 Consideration GST exclusive
Unless expressly stated otherwise, all amounts payable or consideration to be provided are exclusive of GST.
7.2 Payment of GST
If GST is payable on any supply made under this Agreement, for which the consideration is not expressly stated to include GST, the recipient agrees to pay to the supplier an additional amount equal to the GST payable at the same time that the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided. However:
(a) the recipient need not pay the additional amount until the supplier gives the recipient a tax invoice or an adjustment note;
(b) if an adjustment event arises in respect of the supply, the additional amount must be adjusted to reflect the adjustment event and the recipient or the supplier (as the case may be) must make any payments necessary to reflect the adjustment; and
(c) this clause 7.2 does not apply to the extent that the GST on the supply is payable by the recipient under Division 84 of the GST Act.
If a party is required under this Agreement to indemnify another party, or pay or reimburse costs of another party, that party agrees to pay the relevant amount less any input tax credits to which the other party (or to which the representative member for a GST group of which the other party is a member) is entitled.
7.4 Calculation of payments
If an amount payable under this Agreement is to be calculated by reference to:
(a) the price to be received for a taxable supply then, for the purposes of that calculation, the price is reduced to the extent that it includes any amount on account of GST; and
(b) the price to be paid or provided for an acquisition then, for the purposes of that calculation, the price is reduced to the extent that an input tax credit is available for the acquisition.
For the purposes of this clause 7:
(a) a term which has a defined meaning in the GST Act has the same meaning when used in this clause 7;
(b) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
(c) each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies will be treated as though it is a separate supply.
8.1 Warranties by You
You represent and warrant that:
(a) You have full capacity and authority to enter into and to perform this Agreement; and
(b) this Agreement will constitute legal, valid and binding obligations on You.
8.2 Your indemnity
You indemnify Affinda against any loss, damage, cost or expense suffered or incurred in connection with a breach by You of clause 4.4 (Personal Data) or clause 10 (Confidential Information).
9.1 Exclusion of implied terms
(a) All Affinda Systems, Products and APIs are provided to You on an “as is” and “as available” basis. To the maximum extent permitted by law, except as expressly set out in this Agreement, Affinda excludes all conditions, representations, warranties and statutory guarantees, whether express or implied and including any implied warranties of merchantability or fitness for purpose, in relation to Affinda Systems and Products and the other subject matter of this Agreement.
(b) If a condition, representation, warranty or statutory guarantee cannot, by law, be excluded in accordance with clause 9.1(a), then to the extent permitted by law Affinda limits its liability in relation to that condition, representation, warranty or statutory guarantee to:
(i) in relation to goods, the repair or replacement of those goods or the cost of repair or replacement; and
(ii) in relation to services, the resupply of those services or the cost of resupply.
9.2 Limitations of liability
(a) To the maximum extent permitted by law, the aggregate liability of Affinda in connection with this Agreement (whether in contract, tort (including negligence) or otherwise) is limited to the greater of A$10 and the amount of the fees actually paid by You to Affinda in the one (1) month period before the event giving rise to the liability, minus any amounts previously paid by You to Affinda in discharge of liability under or in connection with this Agreement.
(b) We will not be liable for any indirect, special or consequential damages (being damages other than damages that may fairly and reasonably be considered arising naturally or directly from the event by which they are caused) arising out of or in connection with this Agreement, including (without limitation) damages for loss of profit, loss of opportunity, loss of anticipated savings and loss resulting from third party Claims.
9.3 Duty to mitigate
You will use all reasonable endeavours to mitigate any loss and damage You suffer under or in connection with this Agreement.
9.4 Proportionate liability
The liability of a party to another party under this Agreement is reduced to the extent that the liability is caused or contributed to by an act or omission of the latter party or any of the latter party’s officers, employees, agents and contractors.
10.1 Disclosure of Confidential Information
You must not disclose the Confidential Information to any person except with the express prior consent of Affinda or if required to do so by law.
10.2 Permitted Disclosure
(a) You must use all reasonable endeavours to ensure that persons receiving the Confidential Information from it do not disclose the information except in the circumstances permitted in clause 10.1.
(b) Where You disclose Confidential Information if required to do so by law, You must notify Affinda of the requirement to make the disclosure as soon as practicable and will provide any assistance reasonably requested by Affinda in order to limit the nature and extent of the disclosure required.
10.3 Use of Confidential Information
You must not use, copy, reproduce, share or disseminate any Confidential Information except for the purpose of performing Your obligations under this Agreement.
10.4 Return of Confidential Information
Upon request, You must immediately deliver to Affinda or destroy all documents or other materials containing or referring to the Confidential Information which are in Your possession, power or control.
We may terminate this Agreement without notice. Upon termination of this Agreement:
(a) all outstanding fees and charges payable by You will immediately become due and payable;
(b) all rights and licences granted under this Agreement will cease and You must stop using Affinda Systems and Products; and
(c) You must, if requested, either destroy, permanently delete or return all copies of any Software then in Your possession or control.
The following clauses will survive the termination of this Agreement: 1, 6.4, 7 to 10 (inclusive), 11.2, 13, 17 and 18.
12.1 Dispute notice
A party claiming that a dispute exists in connection with the Agreement must notify the other party in writing of the details of the dispute.
12.2 Good faith negotiation
In the event of a dispute the parties will work together in good faith to attempt to resolve the matter. If the parties are unable to resolve a dispute within ten (10) Business Days of receipt of the dispute notice, then either party may suggest or pursue other forms of dispute resolution.
Neither party may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute under this Agreement unless the dispute resolution procedures set out in this clause 12 have been followed.
Affinda will not be liable for any delay or failure in performance due to circumstances beyond its reasonable control, including but not limited to acts of God, virus, disease, pandemic, war, terrorism, riot, civil commotion or sabotage, expropriation, condemnation of facilities, national or state emergency or other governmental action of any kind, strikes, lockouts, work stoppages or other labour difficulties, floods, droughts or other severe weather, fires, explosions or other catastrophes or accidents that among other things causes damage to or destruction, in whole or in part, of the equipment or property necessary to provide the Product(s).
Any notice required to be given under the Agreement must be in writing and be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as notified by that party for such purposes, or sent by email to the other party’s email address.
A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email will be deemed to have been received at the time of transmission (as shown by the time sent by the sender) unless the sender receives a sent email failure message.
You may not assign, novate or otherwise deal with any of Your rights or obligations under this Agreement.
16.1 UN Convention on the Sale of Goods
The parties expressly agree that the United National Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16.2 Export restrictions
Affinda Systems and Products may be subject to export laws and regulations in certain jurisdictions. Each party must comply with any such laws and regulations.
16.3 Publicity Rights
We may identify You as a customer or client in our promotional materials.
17.1 Remedies cumulative
The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.
The indemnities in this Agreement are continuing obligations, independent from the other obligations of the parties under this Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
17.3 No partnerships
Nothing contained or implied in this Agreement constitutes a party the partner, agent, or legal representative of another party for any purpose or creates any partnership, agency or trust, and no party has any authority to bind another party in any way.
17.4 Variation and waiver
A material provision of this Agreement, or a material right created under it, may not be varied or waived except by agreement in writing.
17.5 Entire agreement
(a) This Agreement constitutes the entire Agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
(b) Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty not expressly set out in this Agreement.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
17.7 Counterparts and Electronic Signature
This Agreement may be executed in counterpart, each of which will be deemed an original copy and both of which will constitute one and the same agreement. A party may execute and deliver a counterpart by facsimile or other electronic signature (including portable document format) and the receiving party may rely on the receipt of such document so executed and delivered as if the original had been received.
18.1 Governing Law
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed by, the laws of the State of Victoria, Australia.
The parties irrevocably agree that the courts of the State of Victoria, Australia, have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).