1. LICENSE AND ACCEPTANCE OF TERMS
1.1 This End User Licence Agreement is a legal contract between you (you), and Concerto Analytics Pty Ltd (ABN 55 617 236 218) of P.O. Box 651 Collins Street West Victoria 8007 (Concerto Analytics, we or us).
1.2 You have been granted access to use the Concerto platform (such software and the documentation collectively referred to herein as the SaaS Services) by our enterprise licensee (Licensee) in accordance with the Enterprise SaaS Agreement entered into between us and the Licensee (Enterprise Licence). This Agreement governs your use of the SaaS Services and related online or electronic documentation.
1.3 You wish to license the SaaS Services. Your licence is offered to you, conditional upon your acceptance without modification of this Agreement. You agree to be bound by the terms of this Agreement by activating or otherwise using the SaaS Services. Your use of and access to the SaaS Services indicates your acceptance of the Agreement, and any other terms, conditions, and notices which appear on the Concerto Analytics’ website, as they exist at that time (collectively, the Agreement). If you do not accept the Agreement, you are not authorised to use the SaaS Services.
1.4 Concerto Analytics reserves the right at any time, at its sole discretion, to change or otherwise modify the Agreement, in accordance with the terms and conditions herein. This Agreement may be amended from time to time by notices to you at your email address provided to Concerto Analytics. If you have reasonable grounds to believe that amendments made by Concerto Analytics will be detrimental to your rights, you may terminate this Agreement without penalty within 14 days of the notice being posted. Terminating this Agreement will mean you can no longer access the Enterprise Licencee’s Licence. You agree to be bound to any changes to this Agreement if you continue to use the SaaS Services after such modification is posted, and your continued access or use of the SaaS Services signifies your acceptance of the updated or modified Agreement.
2.1 The SaaS Services are licensed to you and not sold. Subject to the terms of this Agreement, Concerto Analytics hereby grants you a non-exclusive, non-transferable and revocable licence to use the SaaS Services as defined in the Enterprise Licence (Licence). You may not sub-license the Licence to any third party. Concerto Analytics grants the Licence to you on condition that:
(a) the Licensee is in a possession of a valid and current Enterprise Licence;
(b) the SaaS Services will only be used by you in accordance with the SaaS Services’ normal operating procedures as notified by Concerto Analytics to you from time to time;
(c) unless authorised by this Agreement, you must not copy, modify, reproduce, reverse engineer or otherwise alter in any way the Software without the prior written consent of Concerto Analytics;
(d) any warranties, so far as they relate to you, are true at all times during the term of this Agreement; and
(e) you will be responsible for your access to and use of the SaaS Services and will ensure at all times during the term of this Agreement that the SaaS Services are protected from damage, misuse and/or unauthorised use by any person.
3. ACKNOWLEDGEMENTS, WARRANTIES AND REPRESENTATIONS
3.1 You acknowledge, agree, warrant and represent that:
(a) you have legal capacity, power and authority to enter into this Agreement;
(b) Concerto Analytics owns all intellectual property rights in the SaaS Services and by entering into this Agreement title and/or ownership of the SaaS Services has not been transferred to you; END USER LICENCE AGREEMENT Page 2 of 7
(c) Concerto Analytics reserves all such rights with respect to the SaaS Services, except for the license expressly granted to you in this Agreement. Except for such express license, no right, title, interest or license in or to the SaaS Services, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you;
(d) your use of the SaaS Services is at your own risk; and
(e) if the Concerto Analytics wishes to provide you with an update of the SaaS Services then you will facilitate the provision of such update by giving any assistance to the Concerto Analytics that the Concerto Analytics reasonably requires;
(f) Concerto Analytics may pursue any available equitable or other remedy against you as a result of a breach by you of any provision of this Agreement.
3.2 Concerto Analytics acknowledges, agrees, warrants and represents that:
(a) it has legal capacity, power and authority to enter into this Agreement; and
(b) to the best of its knowledge and belief the SaaS Services does not infringe the intellectual property rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.
3.3 Other than as set out in this Agreement, Concerto Analytics makes no warranties or representations in relation to the SaaS Services
4.1 You acknowledge and agree that you will not:
(a) resell, assign, transfer, distribute or provide others with access to the SaaS Services;
(b) “frame”, “mirror” or serve the SaaS Services on any web server or other computer server over the Internet or any other network;
(c) use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(d) use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
(e) introduce malicious programs into Concerto Analytics’ hardware and software or IT systems, including viruses, worms, trojan2 horses and e-mail bombs;
(f) use the SaaS Services 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 SaaS Services;
(h) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services (except as expressly permitted by the Copyright Act 1968 (Cth));
(i) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services;
(j) use the SaaS Services in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents; or
(k) take any action that interferes, in any manner, with Concerto Analytics or its licensors’ rights with respect to the SaaS Services. In addition, title, ownership rights and intellectual property rights in and to any content in the SaaS Services is the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.
5. SUPPORT, UPDATES& NON-PERSONALLY-IDENTIFIABLE INFORMATION
5.1 You acknowledge that Concerto Analytics has no obligation to provide you with any support for Updates to the SaaS Services, except as set out in the Enterprise Licence. Concerto Analytics may, from time to time, issue updated versions of the SaaS Services. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such Updates.
5.2 The SaaS Services may contain communications features which relay certain non-personally identifiable information to Concerto Analytics in connection with the operation of the SaaS Services. This information may include your SaaS Services’ settings. Concerto Analytics may use this information for research purposes including statistical analysis of aggregate customer behaviour.
6. PRIVACY AND REGISTRATION INFORMATION
6.1 As part of any account registration process, Concerto Analytics may request registration-related information, including your name and email address. By providing this information, you consent to its collection and use by Concerto Analytics to provide non-promotional communications regarding the SaaS Services. You may also have the opportunity to opt-in to receive promotional emails and materials from Concerto Analytics. By choosing the opt-in option, you give your consent to receive such promotional materials from Concerto Analytics until you exercise your option to unsubscribe from such communications. Concerto Analytics will not, at any time, share your registration information with third parties unless:
(a) specifically authorised by you;
(b) as required by law or court order;
(c) to third-parties providing related services for Concerto Analytics under appropriate obligations of confidentiality;
(d) in connection with a legal process; or
(e) to an acquirer of all or substantially all of the shares or assets of Concerto Analytics or of the Concerto Analytics division to which this Agreement relates.
7. DISCLAIMER OF WARRANTY
7.1 The SaaS Services are provided to you “as is” without warranty of any kind, except as provided under Australian Consumer Law. To the maximum extent permitted by applicable law, Concerto Analytics and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the SaaS Services. Concerto Analytics does not warrant that the SaaS Services will meet your requirements or be error free. The entire risk arising out of the use or performance of the SaaS Services remains with you. You understand and agree that any software, material or data downloaded or otherwise obtained through the use of the SaaS Services, is at your own discretion and risk and that you will be solely responsible for any damage to your computer, system or network, including any loss or corruption of data.
8. LIMITATION ON LIABILITY AND INDEMNITY
8.1 To the maximum extent permitted by applicable law, in no event will Concerto Analytics or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of data, computer system failure, malfunction or other pecuniary loss) arising out of this Agreement, or the use of or inability to use the SaaS Services, even if Concerto Analytics has been advised of the possibility of such damages.
8.2 Concerto Analytics is not responsible or liable for any infections or contamination of your system, damage to your system, or delays, inaccuracies, errors or omissions arising out of your use of the SaaS Services. The SaaS Services are not intended for use in the operation of nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the SaaS Services could lead to death, personal injury or severe physical or environmental damage.
8.3 Concerto Analytics is not responsible or liable for any infections or contamination of your system, damage to your system, or delays, inaccuracies, errors or omissions arising out of any third party software or operating system.
8.4 Despite anything to the contrary, to the maximum extent permitted by the law Concerto Analytics’ maximum aggregate liability arising from or in connection with this Agreement will be limited to, and must not exceed $1.
8.5 Despite anything to the contrary, to the maximum extent permitted by the law, Concerto Analytics has no liability, and you release and discharge Concerto Analytics from all liability, arising from or in connection with any:
(a) injury, damage or loss to any person or property;
(b) failure or delay in providing the SaaS Services;
(c) unavailability, outage or interruption to the SaaS Services; or
(d) breach of this Agreement or any applicable laws, where caused or contributed to by any:
(e) event or circumstance beyond Concerto Analytics’ reasonable control;
(f) a fault, defect, error or omission in your computing environment or data you input; or
(g) act or omission of you, your related parties or a third-party service provider, and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the SaaS Services.
8.6 Certain legislation including the Australian Consumer Law, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of Concerto Analytics’ services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this Agreement.
8.7 You acknowledge and agree that:
(a) you use the SaaS Services and any associated programs and files at your own risk;
(b) the SaaS Services may use third party products, facilities or services. Concerto Analytics does not make any warranty or representation in respect of the third-party products, facilities or services;
(c) the technical processing and transmission of the SaaS Services, including the data you input, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
(d) Concerto Analytics may use third party service providers to host the SaaS Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, the Concerto Analytics may cease providing any affected features;
(e) Concerto Analytics does not guarantee that any file or program available for download and/or execution from or via the SaaS Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used; and
(f) Concerto Analytics may pursue any available equitable or other remedy against you if you breach any provision of this Agreement. This clause 8 will survive termination of the Agreement.
9.1 We may terminate this Agreement (or where applicable suspend your access) in our sole discretion without incurring any liability to you, if:
(a) you commit a non-remediable breach of this Agreement;
(b) you commit a remediable breach of this Agreement and do not remedy the breach within 3 days after receiving notice of the breach;
(c) the Enterprise Licensee terminates (including if any free or trial period is terminated under the Enterprise License); or
(d) the Enterprise Licensee providing you with access to the SaaS Services terminates your access.
9.2 You may terminate your Account and this Agreement at any time, via your Account management dashboard or by emailing us.
9.3 Upon termination pursuant to subclause 9.1 or 9.2, you must immediately cease all use of the SaaS Services. In addition to any other remedy available to Concerto Analytics, you agree that Concerto Analytics may seek immediate injunctive relief in the event of a breach of this Agreement by you.
9.4 You must ensure that all data stored on the SaaS Services is backed up so that you do not lose your data if Concerto Analytics suspends or terminates your account and/or the Licence.
9.5 Termination of this Agreement will not release either Party from any rights or liabilities accrued prior to termination or which would have accrued as a result of an act or omission prior to termination but for the termination of this Agreement.
10.1 You may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or the SaaS Services.
11.1 Subject to subclause 11.2, you agree:
(a) not to disclose the Confidential Information to any third party at any time;
(b) to use your best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c) only to use the Confidential Information for the purpose for which it was disclosed by Concerto Analytics and not for any other purpose; and
(d) to be responsible for and assume liability in relation to all of your employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
11.2 Your obligations set out in clause 11.1 do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of you in breach of this Agreement; and/or
(b) received from a third party, except where there has been a breach of confidence; and/or
(c) that must be disclosed by law, provided that you reveals only so much of the Confidential Information as you are required by law to disclose and gives sufficient notice to Concerto Analytics in order to allow Concerto Analytics to object to, or otherwise prevent, the Confidential Information being disclosed.
11.3 This clause will survive termination of this Agreement.
12. RELATIONSHIP OF PARTIES
12.1 Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party. The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
13.1 You must not assign or deal with the whole or any part of your rights and/or obligations under this Agreement. Any purported dealing in breach of this clause is of no effect.
14. WAIVER OR VARIATION OF RIGHTS
14.1 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
15. POWERS, RIGHTS AND REMEDIES
15.1 Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
16. ENTIRE AGREEMENT AND UNDERSTANDING
16.1 In respect of the subject matter of this Agreement:
(a) this Agreement contains the entire understanding between the Parties; and
(b) all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.
17. GOVERNING LAW AND JURISDICTION
17.1 This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
18. DEFINITIONS AND INTERPRETATION
18.1 Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
18.2 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria.
18.3 Confidential Information means any information or document about or in any way relating to the terms of this Agreement or Concerto Analytics in any media or form that is acquired by or made available to you in the course of the relationship between the Parties, including but not limited to any information or documents about the Goods, Concerto Analytics’ business, organisational structure, activities, operating procedures, products and services, trade secrets and know how, finances, plans, transactions and policies.
18.4 Licence means the license granted to you to enable you to use the SaaS Services.
18.5 SaaS Services means the software as a service to be licensed by Concerto Analytics to you on the terms and conditions set out in this Agreement and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software as a service after this Agreement is entered into by the Parties.
18.6 Parties means the parties entering into this Agreement.
18.7 Updates means available updates to the SaaS Services, such as bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions.