InOrbit Technologies Pty Ltd, (Licensor, we, us and our) invite you (Company) to register to use the Product as part of our beta testing and evaluation program (the Beta Test Program). If you register for the Beta test Program, this constitutes your offer to participate. You are not entitled to participate in the Beta Test Program until we accept your offer and enable you to have access to the Product.
If we accept your offer to participate in the Beta Test Program then these terms govern your use of the software application and services enabled by the Product and your participation in the Beta Test Program.
The Product is developed and provided by Licensor to you for the purpose of evaluation only.
Licensor is a company registered in Australia (ABN: 70 626 568 376).
The Product is a managed software service hosted in a ‘cloud-style’ online environment in conjunction with, and directly interacting with Company’s business applications via one or more APIs.
The Product functions to enable certain functionality (Services), which the Company, and individual users (with authority of the Company) may separately enable on a case by case basis from the menu within the Product.
If we accept your offer to participate in the Beta Test Program then you agree to comply with these Terms and any supplemental terms which may be applicable.
Your Agreement to these Terms
BY ACCESSING, USING OR UPLOADING OR DOWNLOADING ANY INFORMATION OR MATERIALS TO OR FROM THE PRODUCT, OR BY INDICATING YOUR ASSENT TO THESE TERMS BY CREATING AN ACCOUNT, CLICKING “SIGN UP” OR ANY SIMILAR MECHANISM, YOU ARE AGREEING TO THE THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE PRODUCT.
Licensor grants the Company and the Company accepts a personal, non-transferable, non-exclusive licence to use the Product during the Evaluation Period solely for the purpose of testing and evaluating the Product, subject to the terms of this Agreement and, if applicable, the Existing NDA. This Agreement expires at the end of the Evaluation Period.
Obligations of Licensor
Accessing the Product
Licensor will (at the Licensor’s cost) enable access to the Product by the Company on and from the Start Date described in the Agreement Details, or at a time otherwise agreed in writing by the parties
Licensor will provide the Company with such technical and other assistance as Licensor considers reasonably necessary to properly install and operate the Product for the purposes of evaluation.
Obligations of the Company
Use of Product
- During the Evaluation Period, the Company may make such use of the Product and run such tests as it considers necessary, subject to the terms of this Agreement. Company acknowledges and accepts that the Product is in beta testing stage and may not operate as intended and outcomes are uncertain. All use and testing of the Product is at the Company’s risk and any tests undertaken by the Company must be in accordance with or consistent with the Documentation.
- If the consent of a third party is required in order for any data to be processed by the Product or in connection with the Services then Company is solely and exclusively responsible to obtain that consent from the third party.
- The Company is primarily responsible for responding to a claim or query from a customer or employee of Company (or any third party, including a regulatory authority) with respect to the specific content, quality, meaning or message in any transaction processed by the Product and Company accepts that Licensor will refer any such claim or query to Company.
- Unless otherwise permitted by law, the Company must not:
- resell, reframe, distribute or on-sell the Product;
- include the Product in any service bureau or outsourcing or managed service offering;
- transfer, sub-license or assign its rights under this Agreement to any third party unless Licensor gives its prior written consent (not to be unreasonably withheld);
- modify or adapt or create derivative works of the functionality of the product;
- reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Product;
- build a competitive service; or
- copy any features, functions or graphics of the Product.
- Company must not:
- use the Product in any manner that could disable, overburden, damage, or impair the Product or interfere with any other user’s use of the Product;
- use any robot, spider or other automatic device, process or means to access the Product for any purpose, including monitoring or copying any of the material on the Product;
- use any manual process to monitor or copy any of the material on the Product or for any other unauthorised purpose without Licensor’s prior written consent;
- use any device, software or routine that interferes with the proper working of the Product;
- introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
- attempt to gain unauthorised access to, interfere with, damage or disrupt any parts of the Product or any server, computer or database connected to the Product;
- attack the Product via a denial-of-service attack or a distributed denial-of-service attack; or
- otherwise attempt to interfere with the proper working of the Product.
Consultation with Designated Representative
During the Evaluation Period, Licensor and the Designated Representative shall consult regularly by telephone, video conference, email or face to face (as considered necessary by Licensor) in relation to the performance of the Product and, without limitation, the Designated Representative will answer the Licensor’s reasonable questions in relation to:
- the accessibility and use of the Product;
- the content and processes which are enabled by Product; and
- the potential for a business relationship.
Modifications to Product During Evaluation Period
- The Company agrees to implement promptly any Modification provided by Licensor or implement any changes to the use of the Product instructed by Licensor during the Evaluation Period. The Company understands that these Modifications and changes may override previous Modifications or instructions and could include changes to the system and its operating procedures which may prevent a Company Application from operating on or in conjunction with the Product.
- Except as required under clause 3.3a) or at the written direction of Licensor, the Company must not modify the Product during the Evaluation Period.
Responsibility for Security of Access and Logins
The Company acknowledges and agrees that it is responsible for the following:
- nominating which of its personnel will be authorised to log into the Product and to receive outputs of the Services;
- Using reasonable efforts to resolve technical issues to enable the Services;
- revoking or adjusting the access of any personnel; and
- providing adequate security for the computer network and Co’mpany’s account login details in conjunction with which the Product is used.
Election to Purchase a Subscription Licence to Product
Upon completion of, or at any time during the Evaluation Period, the Company may notify Licensor that it wishes to purchase one or more subscriptions for access to the Product. If the Company wishes to purchase a subscription to the Product, the parties will enter into a separate subscription licence on Licensor’s then current terms and conditions or such other terms and conditions as are agreed by Licensor and Company.
Accessing Company Applications
Company acknowledges that Product cannot provide the Services unless given access to Company Applications in a form which is technically compatible with the Product. It is Company’s responsibility to obtain any necessary permissions from third parties to enable the Product to access Company Applications.
Ownership of Product and Intellectual Property rights (IPR)
Ownership of Product
The Company acknowledges that the Product is made available and accessible to the Company for evaluation purposes only and that Licensor retains ownership of all right, title and interest to the Product, the Product design, the Documentation, Modifications, Content and the IPR in the Product, Documentation and Modifications and the Content.
The Company agrees not to do any of the following or authorise or assist any person to do any of the following:
- copy, modify, or reverse engineer, make an adaptation of, communicate to the public or otherwise disclose the Product (including Content made accessible in the Product) or copy, modify, or reverse engineer, make an adaptation of, communicate to the public or otherwise disclose the IPR in the Product, Content or Software;
- make derivative works based upon the Product;
- use the Product or the Documentation or the Content to develop any products, services or software without Licensor’s prior written approval (which approval may be given in Licensor’s absolute discretion and subject to any conditions which Licensor wishes to impose); and
- sell, license, rent, or transfer the Product or otherwise make the Product accessible to any third party.
The Company indemnifies and will keep indemnified Licensor in respect of all loss, expenses, costs and damages that Licensor suffers or incurs as a consequence of or arising from the Company’s failure to comply with this clause.
Limited Access Licence
Licensor grants the Company and the Company accepts a personal, non-transferable, non-exclusive licence to access and use the Product during the Evaluation Period solely for the purpose of testing and evaluating the Product subject to the terms of this agreement and the following restrictions:
- the Product may only be used by specific individuals who are employees or agents of Company and who are subject to an obligation of confidentiality; and
- the number of specific individuals who are granted access to the Product must not exceed the number described in the Agreement Details.
Assignment of IPR in Modification
The Company assigns to Licensor, the Company’s entire right, title and interest in the IPR in any Modifications to the Product which the Company may identify or propose during the Evaluation Period or which the Company and Licensor jointly identify or propose during the Evaluation Period.
Clauses 5.2 to 5.8 inclusive will apply if an Existing NDA does not exist, otherwise the Existing NDA applies to all disclosure of Confidential Information under this Agreement.
Receiving Party Acknowledgement
The receiving party acknowledges that:
- the Confidential Information disclosed to it by the disclosing party is the sole and valuable property of the disclosing party;
- any Confidential Information received by the receiving party from the disclosing party prior to the date of this Agreement has been treated as being confidential and confirms that it has not been disclosed to any third party without the disclosing party’s consent;
- it must have no right, claim or interest in respect of the Confidential Information of the disclosing party;
- any IPR or interest in respect of the Confidential Information disclosed to it by the disclosing party is vested in the disclosing party; and
- any unauthorised disclosure or use of the Confidential Information disclosed to it by the disclosing party could give rise to considerable damage to the disclosing party.
Each party undertakes in relation to the Confidential Information of the other:
- to keep the Confidential Information confidential, not to disclose it to third parties without the other party’s written consent and to use the Confidential Information exclusively for the Express Purpose, and for no other purpose;
- not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonably necessary for the Express Purpose without the prior written approval of the other party and that any such copies or reductions to writing will be the property of the other party and will also be Confidential Information;
- not to use, reproduce, transform or store any of the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means whatsoever outside of its usual place of business, except to the extent required by applicable record retention laws;
- take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information and (without limiting the foregoing), the receiving party must take at least those measures that it takes to protect its own most highly confidential information; and
- not otherwise use or attempt to use any of the Confidential Information for its own advantage or gain, directly or indirectly.
- Notwithstanding any other provision of this Agreement the receiving party may disclose the Confidential Information disclosed to it by the disclosing party to its officers and employees who have a specific need to know the Confidential Information for the Express Purpose, provided that any such officers and employees have been made aware of the terms upon which the Confidential Information has been disclosed to the receiving party and have entered into a confidentiality Agreement with the receiving party on terms consistent with the terms and conditions of this Agreement. The receiving party will remain liable to the disclosing party for any unauthorised disclosure of the Confidential Information by its officers and employees.
- If the receiving party is, or may be, required by law or Court order to disclose any of the Confidential Information of the disclosing party, it will not be a breach of the receiving party’s obligations under this Agreement to do so provided that the receiving party immediately notify the disclosing party in writing of the requirement and that it restrict the disclosure to that information which it is required by law to disclose. The receiving party must, as directed by the disclosing party:
- assist or permit the disclosing party to oppose or restrict disclosure; and
- to the extent practicable, make disclosure on terms which will preserve the confidentiality of the Confidential Information.
Return of Confidential Information
The receiving party must, upon receipt of written notice by the disclosing party from time to time requiring the return or destruction of any of the Confidential Information of the disclosing party in the possession, custody or control of the receiving party:
- immediately return to the disclosing party (or as the disclosing party may otherwise direct) all Confidential Information of the disclosing party including all documentation and materials in its possession or under its control which in any way relate to or embody the Confidential Information of the disclosing party together with any and all copies or extracts of such Confidential Information or related documentation, whether in a physical form or recorded or stored by any electronic means or otherwise except where such Confidential Information or related documentation is stored on the back-up tapes of the receiving party; and
- at the same time certify in writing to the disclosing party that it has returned all such Confidential Information including copies thereof and that it no longer has any part of such Confidential Information in its possession, custody or control.
The receiving party must notify the disclosing party immediately if it becomes aware of a suspected or actual breach of this clause 5 and take all reasonable steps, at its own expense, required to prevent or stop the suspected or actual breach.
The receiving party indemnifies the disclosing party against all loss or damage whatsoever that the disclosing party may sustain or incur as a result, whether directly or indirectly, of any breach by the receiving party or its officers or employees of their Confidentiality Obligations.
The receiving party acknowledges and agrees that:
- damages may not be an adequate remedy for any breach of the provisions of this clause 5; and
- the disclosing party will be entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by the receiving party, in addition to any other remedies available to the disclosing party at law or in equity.
- Company must comply with applicable privacy laws in relation to all personal information and sensitive information of third parties collected by Company and made accessible to the Product in connection with this agreement.
Mutual Rights of Termination
A party may terminate this Agreement by written notice to the other party, effective immediately if the other party materially breaches any obligations under this Agreement and the breach is not rectified within seven days of notice of the breach.
Licensor’s Rights of Termination
Without limitation to clause 7.1, this Agreement may be terminated immediately by Licensor if the Company breaches a material term of the Existing NDA (as applicable).
Consequences of expiry or Termination
- Upon expiry or termination of this Agreement, Licensor may terminate Company’s ability to access the Product and the Company must immediately cease accessing and using the Product. The Company will not be required to cease accessing and using the Product if the parties have agreed and entered into a subscription licence for the Product as provided in clause 3.5.
- Either Clause 5, the Existing NDA as applicable, and clauses 3.2(b), 3.4, 4.1, 4.2, 4.4, 8 and 10 and any other clause which by its nature is intended to survive the expiry or termination of this Agreement will survive the expiry or termination of this Agreement.
Exclusions of Warranties and Implied Terms
The Product is provided “as is” without warranty of any kind. To the extent permitted under applicable laws, Licensor disclaims all warranties, whether express, implied or statutory, including without limitation, any implied warranty of non-infringement of third party rights, merchantability or fitness for any particular purpose. Licensor does not warrant that the functionality of the Product will meet Company’s requirements, that the Product will operate properly in combination with other content, software plug-ins, APIs or protocols, or that the operation of the Product will be uninterrupted or error-free, or that all errors or defects in the Product will corrected. Furthermore, Licensor does not warrant or make any representations regarding use or the results of the use of the Product (including support, if any) in terms of correctness, accuracy, reliability, or otherwise.
The Product is not designed or intended to be fail-safe, or for use in any application requiring fail-safe performance, such as in life-support or safety devices or medical devices, nuclear facilities or any other applications that could lead to death, personal injury or severe property or environmental damage (individually and collectively, “critical applications”). The Company agrees not to use the Product for any of critical applications or other situations or applications specified in this clause. To the maximum extent permitted by applicable law, the Company assumes the sole risk and liability of any use of the Product in critical applications and or other situations or applications specified in this clause.
Limitation of Liability
Despite any other provision of this Agreement, to the extent permitted by applicable law, all liability of Licensor under this Agreement including any claim for loss, damages, costs or expenses arising from breach of contract, in tort (including negligence) or otherwise is limited in the aggregate to the amount the Company paid to Licensor for the evaluation licence or AU$100, whichever is greater. Licensor’s liability under this clause is reduced proportionately to the extent that the Company caused or contributed to the liability.
Company agrees to indemnify, defend and hold harmless Licensor and its officers, directors, employees, and agents from and against all losses, expenses, damages and costs, including reasonable solicitor’s fees, resulting from:
- breach of this Agreement by Company; or
- any activity conducted by Company or by a user accessing or using the Product while it is in the possession or control of Company;
- a claim made against Licensor arising from Company’s failure to comply with relevant Workplace Health legislation and any other applicable legislation (including applicable data protection and privacy laws) when Company uses the Product.
Exclusion of Indirect, Special and Consequential Loss
Except with respect to claims regarding infringement of Licensor’s IPR or breach of confidentiality under the terms of this Agreement or the Existing NDA (as applicable), neither the Company nor Licensor (including any of Licensor’s directors, employees, agents, subcontractors and suppliers) is liable to the other party for:
- any special, consequential, exemplary, incidental, or indirect damages; or
- loss of profits, revenues, data, use or opportunity,
even if advised of the possibility of such loss. Neither party may bring any claim under or in relation to this Agreement more than 12 months after the cause of action accrues.
Relationship of the Parties
Nothing in this Agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the parties.
Neither party will, without the prior written consent of the other party, transfer or assign any of its rights or obligations under this Agreement.
In the event of the invalidity, illegality or unenforceability of any part of provision of this Agreement, that invalidity, illegality or unenforceability will not affect the remaining provisions of this Agreement and the part or provision being invalid, illegal or unenforceable will be severed from the remaining provisions of this document.
Failure or omission by a party at any time to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision in any way or the rights of that party to avail itself of the remedies it may have in respect of any breach of such provision.
This Agreement constitutes the whole Agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior discussions between the parties and all representations, warranties or undertakings with respect to the subject matter of this Agreement except as expressly incorporated in this Agreement. This Agreement may only be varied or replaced by an agreement in writing executed by the parties.
Governing Law and Jurisdiction
This Agreement will be subject to the laws of the State of New South Wales, Australia and the parties hereby submit to the non‑exclusive jurisdiction of the courts of that State. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
In this Agreement unless the context otherwise requires terms defined in the Agreement Details will have the meaning ascribed to that term in the Agreement Details and:
Company Applicationmeans any application consisting of software developed by or used by the Company that operates on or in conjunction with the Product and which provides functionality separate from the Product.
- if an Existing NDA is in place, has the same meaning as defined in the Existing NDA, and in relation to Licensor includes the Documentation; and
- if an Existing NDA is not in place between the parties and clause 5 applies – in respect of a party (the disclosing party) means any and all non-public information which is now or at any time before or after the date of this Agreement disclosed to, or otherwise received by, the other party (the receiving party) pursuant to this Agreement concerning the disclosing party, or its business, products or services that has been identified as confidential or proprietary or would be understood to be confidential or proprietary by a reasonable person, whether orally or in writing, including without limitation any information or analysis derived from such Confidential excluding information that:
- was, is or has become lawfully available to the public otherwise than through breach of this Agreement or any other obligation of confidence; or
- was known to and at the free disposal of the receiving party prior to the date of disclosure of such Confidential Information to it; or
- was disclosed to the receiving party by a third party having the right to make such disclosure,
and in relation to Licensor includes the Documentation.
Content means text, images, sounds, special effects (including video and audio and any other format) which conveys information or style and including any user interface and data structure for Software.
Documentation means the user manual, product description and other documentation describing the functionality and use of the Product supplied via any media in conjunction with the Product to the Company at any time.
Existing NDA means an agreement or deed between Licensor and the Company executed on or before the date of this agreement.
Express Purpose means the purpose of the Company undertaking evaluation of the Product in accordance with this Agreement.
Intellectual Property Rights or IPR means all patent, copyright, trade marks (registered and unregistered), designs, circuit layouts, know-how and other confidential information and rights in relation thereto, and all other intellectual property rights and any other rights of a like nature subsisting or conferred by law in force in any part of the world.
Modification means any modification or improvement to the Product including modifications or improvements to the Software and the Content but excludes any Company Application.
Software means any software, firmware, configuration files, libraries, application platforms, applications or other software embedded in or executed as part of the functionality of the Product.