EzeSuite End User License Agreement

EzeSuite End User License Agreement

1. Acceptance of EULA and Amendments to EULA
1.1              The terms of this End User License Agreement (EULA) govern the relationship between the licensee (you) and Engagis Pty Ltd ABN 98 098 945 469 (Engagis) in respect of your use of the EzeSuite Software and the Services.
1.2              The EzeSuite Software and Services are offered for your use on the condition that you read and accept this document and agree to be bound by its terms.
1.3              By installing, using or accessing the EzeSuite Software or Services, you are considered to have accepted the terms set out in this EULA.  If you do not agree with or otherwise do not wish to accept the terms set out in this EULA, do not install, use or access the EzeSuite Software and/or the Services.
1.4              Your use of the Software and the Services is subject to the applicable Engagis Purchase Order terms.  To the extent of any inconsistency between the Engagis Purchase Order terms and this EULA, the terms of the Engagis Purchase Order will prevail.
1.5              Engagis reserves the right to amend this EULA from time to time.  Engagis will notify you of amendments through publication at www.engagis.com/ezesuite-eula and/or via email to you.  The amendments will be effective 14 days after notification (effective date), unless Engagis is required to make the amendments effective earlier to comply with any law (in which case the effective date will be date of notification).  If you do not agree to the terms of any amendments to the EULA, you may terminate the EULA in accordance with appropriate clause of this agreement. Your continued access and use of the Engagis Software or Services after the effective date represents your agreement to be bound by the amended EULA on and from the effective date.
2. Definitions
In this Agreement:
Engagis – refers to Engagis Pty Ltd of 213 Miller Street, 2060 North Sydney, NSW, ABN 98 098 945 469.
Business Day – means a day on which Engagis offices are open for business in Sydney, excluding Saturday, Sunday or public holiday in that city.
Device- refers to a single device owned or controlled by you.
Government Agency – means any government or judicial body, department, authority, agency or entity in any part of the world and includes any organization established under statute.
Intellectual Property – means any and all present and future intellectual and industrial property rights anywhere in the world including copyright, know-how, designs, patents and trademarks, and any application or right to apply for registration of those rights.
EzeSuite Purchase Order – means the Purchase Order between Engagis and you subject to the terms defined in the “Customer Terms and Conditions” available at the following link: www.engagis.com/terms-and-legal.
Services – means services offered by Engagis by means of the EzeSuite Software.
Software – means the ‘EzeSuite ’ software application licensed by Engagis for use on compatible Devices.
Update – means an update supplied by Engagis that replaces or supplements the original EzeSuite Software.
3. Software
3.1              Software license
Subject to the terms of this document, Engagis Pty Ltd grants you a non-exclusive, non-transferable license to:
(a)               use the EzeSuite Software on as many devices as defined in purchased volume license ; or
(b)               use the Software on a single Device, in case of a Trial license .
3.2              Term
Subject to clause 9, the license granted to you in clauses 3.1 is granted for the duration that you have the EzeSuite Software installed on the relevant Device.
3.3              Restrictions
(a)               You must not rent, lease, lend, sell, transfer, redistribute or sublicense the EzeSuite Software.  If you sell or otherwise dispose of, transfer or assign any Devices containing the EzeSuite Software, any copies of the EzeSuite Software must be removed before doing so.
(b)               Other than as expressly provided in this document or otherwise permitted by law, you must not attempt to or copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the EzeSuite Software, or any part thereof.
3.4              Intellectual Property
Engagis retains all right, title and interest to all Intellectual Property rights subsisting in the EzeSuite Software, any Updates, and any part thereof.
4. Updates
4.1              Terms
This Agreement governs any Updates, unless such an Update is accompanied by a separate license supplied by Engagis, in which case the terms of that license will govern to the extent provided for.
4.2              Acknowledgements
You acknowledge and agree that Engagis:
(a)               is under no obligation to provide any Updates;
(b)               can use Updates to add, remove, modify or otherwise alter features of the EzeSuite Software at its sole discretion, and that such changes will not be a breach of this document;
(d)               can require you to install Updates to the Software in order to continue using the EzeSuite Services.
4.3              Other software
In order to obtain, install, update, access, use, or continue to access or use the EzeSuite Software and/or Services, you may also be required to update third party software (such as the operating system) on your Device.
You acknowledge and agree that:
(a)               Engagis is not responsible for such third party updates;
(b)               such third party updates may be subject to their own terms and conditions, which Engagis strongly recommends you review prior to implementing the third party update; and
(c)               if you are unable or unwilling to obtain or install such third party updates, you may be unable to obtain, install, update, access, use, or continue to access or use the EzeSuite Software.
(d) EzeSuite Software may not function as intended due to specific security settings on the device level, such as firewall or antivirus software that block specific ports or services EzeSuite rely on to deliver full functionality.
5. Services
5.1              Services offered via the EzeSuite Software
(a)               Subject to availability, Services provided through the Software may include:
(i)                applying for an EzeSuite Feature or Product;
(ii)              managing EzeSuite features.
(b)               EzeSuite can modify or cease to offer the Services, or any part thereof, at any time without prior notice to you.
(d)               You acknowledge that information regarding the status of your EzeSuite Software when accessed via the EzeSuite Software may not always be up to date.
5.2              Risk
(a)               You acknowledge and agree that you use the EzeSuite Services at your own risk.
(b)               To the extent permitted by applicable law, Engagis does not accept liability for any claims or losses arising directly, or indirectly from:
(i)                a failure to provide any Engagis Software or Service, or any part thereof;
(ii)               any suspension or discontinuance of any Service, or any part thereof; or
(iii)              any use of the EzeSuite Services by other users, including any use of the EzeSuite Services by other users in manner which contravenes this document.
6. User account
6.1              Requirement
(a)               In order to use the EzeSuite Software and/or the Services, or parts thereof, you will be required to create a user account.
(b)               EzeSuite may require additional personal information (including but not limited to your email address, mobile phone number and billing details) to verify your identity, to facilitate your use and access to the EzeSuite Software and Services and your account and to approve certain transactions relating to Engagis Products and Services.
6.2              Limits
You must ensure that:
(a)               you do not allow multiple people to use the same user account.
6.3              Security
(a)               You are responsible for protecting the confidentiality of your password.
(b)               You acknowledge and agree that you will be responsible for any activities engaged in using your account, whether or not access is authorized by you.
(c)              Engagis may require that you change your password if Engagis suspects the security of your account has been breached.
6.4              Disabling of features and functionality
In the event that you fail to pay any amounts by the due date for payment, without limiting Engagis’ other rights and remedies, Engagis may disable features and/or functionality of the EzeSuite Software and/or Services until such amount has been paid.
6.5              Updates
In the event that any of your contact details change (including email address or mobile phone number) you must promptly update your account details. You will be liable for any unauthorized access or use of your account that results from your failure or delay to notify us of changes to your contact details.

7. Your obligations

7.1              Restricted parties

You warrant and represent that the following statements are true and correct:
(a)               you are not located in a country that is subject to an embargo by the Commonwealth of Australia; and

(b)               you are not included on any list of prohibited or restricted parties by the Commonwealth of Australia.

7.2              Third party services

(a)               Access to the Engagis Software and/or Services, or parts thereof, require your Device to be connected to the internet or require other third party services.

(b)               Your use of third party services may be subject to fees and separate terms and conditions, and you acknowledge that Engagis is not liable for the activities of any such third parties.

(c)               You must comply with any applicable third party terms of agreement when using the EzeSuite Software and/or Services.  Engagis is not liable if your installation and use of the EzeSuite Software cause you to exceed any data usage quotas, or other limitations that may apply to your Internet service or other services acquired from third parties.

7.3              Restrictions

You agree that you will not:
(a)               attempt to disrupt the normal operation of the EzeSuite Software, or any infrastructure operated by Engagis or other business activities of Engagis ;

(b)               attempt to gain unauthorized access to the Engagis Software and/or the Services;

(c)               impersonate any other person in using of the Software and/or Services; or

(e)               use the Software and/or the Services in connection with the actual or attempted contravention of any applicable laws.

8. Support

Unless otherwise specified in this document or agreed pursuant to a separate written agreement between you and Engagis, Engagis will not be obliged to support the Software or the Service, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the Software or the Service by you.

9. Termination and suspension

(a)               The EULA can be immediately terminated by Engagis in the following circumstances:

(i)                you are in breach of any term of this document;
(ii)               you are in default of your Engagis Purchase Order or you elect to terminate your Engagis Purchase Order ; or
(iii)              you become bankrupt, are wound up or become subject to administration or receivership or any similar thing under any law.

(b)               You may terminate this EULA at any time by deleting the software from your device and any remaining copies of the Engagis Software.

(c)            Termination pursuant to this clause will not affect any rights or remedies which a party may have otherwise under this document or at law.   

(d)              Engagis may suspend your access to the Software or Services without notice to you where Engagis reasonably believes your access should be suspended, including where:

(i)                Engagis believes that there is a risk of fraud or security breach; or
(ii)               you have not accessed the EzeSuite Software for a period of 6 months or more.

(e)               If Engagis has the right to terminate the EULA, it may instead of terminating the EULA:

(i)                immediately suspend your access to the EzeSuite Software and Services;
(ii)               notify you of the breach giving rise to the right to terminate and request that you rectify the breach within the period specified in that notice. If you fail to rectify the breach within this period, Engagis may terminate the EULA.

(f)               Nothing in this clause limits any right Engagis may have pursuant to this document to modify the Software by way of Update, including by removing or amending any features or functionality from the EzeSuite Software, or to modify or cease offering the Services or any part thereof.

10. Warranties, liability and indemnity

(a)               You acknowledge that the EzeSuite Software cannot be guaranteed to be error free and further acknowledge that the existence of any such errors will not constitute a breach of this document.
(b)               Except as expressly provided to the contrary in this document, and to the full extent permitted by applicable law, Engagis will not be liable to you for any loss, including special, indirect or consequential damages (such as loss of profits), or claim, arising out of breach of this document or arising out of the supply of defective EzeSuite Software.

(c)               To the full extent permitted by applicable law, Engagis’s liability for breach of any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by Engagis, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations, is limited to (at Engagis’s option):
(i)                in the case of goods, including the EzeSuite Software (to the extent the Software is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you; or

d)               Without limiting or affecting any other provision of this document, to the full extent permitted by applicable law, EzeSuite’s maximum aggregate liability to you for any loss, damage, liability or expense you incur or claims you make against us in connection with this document is limited to the total license fee for the previous six months.

(e)               You acknowledge that you have exercised your independent judgment in acquiring the Engagis Software and Services and have not relied on any representation made by Engagis which has not been stated expressly in this document or upon descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by Engagis.

(f)                You will indemnify Engagis against all liabilities, costs, losses, expenses which Engagis may suffer or incur in connection with any third party claims or allegations against Engagis that are caused by your breach of this document.

(g)               If you purchased the EzeSuite Software from a Engagis reseller, in the event of any failure of the EzeSuite Software to conform to any applicable warranty, you may notify the specified reseller, and the reseller will refund the purchase price to you.  You acknowledge that, to the maximum extent permitted by applicable law, Engagis will have no other warranty obligation whatsoever with respect to the EzeSuite Software, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will be dealt with by Engagis in accordance with this document.

11. Intellectual Property

11.1           No transfer

This document does not constitute a transfer or conveyance of any Intellectual Property owned by Engagis as at the date of this document, including but not limited to all Intellectual Property associated with the Software and the Services, and its functionality, features and content, or operate as a future transfer of any Intellectual Property owned by Engagis any time thereafter.

11.2           Acknowledgement

You acknowledge that the Software and materials provided in the course of the Services are protected by copyright and may also be protected as other forms of Intellectual Property owned by Engagis.  You will not during or at any time after the termination of this document undertake or permit any act which infringes or attempts to infringe those Intellectual Property rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the Software except as otherwise expressly authorized by this document.

11.3           Reverse engineering

You must not attempt to, or reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Engagis Software or the Services, or any output from the Software or any files related to the Software or the Services.

12. Security

(a)               Unfortunately, no data transmission over the internet can be guaranteed as totally secure.  Whilst Engagis strives to protect such information and keep your personal information confidential, it does not warrant and cannot ensure the security of any information transmitted to it by you.  Accordingly, any information transmitted to Engagis is transmitted at the risk of the sender.  Nevertheless, once Engagis receives transmissions from you, it will take reasonable steps to preserve the security and confidentiality of your personal information.

(b)               Users must take their own precautions to ensure that the process which they employ for accessing the EzeSuite Software and/or the Services does not expose them to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices.  For the removal of doubt, Engagis does not accept responsibility for any interference or damage to Devices, which arises in connection with use of the Engagis Software and/or the Services.

(c)               You must take all reasonable steps to protect the security of your Device, including by ensuring you don’t have any viruses or other mechanisms capable of recording your passwords or access codes to the Software.

(d)               If you suspect that there has been unauthorized access to your account or there is any other security breach or issue relating to the Software, Services or your account, you must notify Engagis immediately and change your account password.

14. Privacy, data and geographical information

13.1           Privacy statement

(a)               Use of the Software and Services is subject to Engagis ’s Privacy Policy.

15. General

14.1           Assignment

(a)               You cannot assign, novate or otherwise transfer any of your rights or obligations under this document without the prior written consent of Engagis which consent can be granted or withheld in the absolute discretion of Engagis. An assignment in breach of clause 14.1(a) is intended by the parties to be void and of no force and effect.

(b)               Engagis can assign, novate or otherwise transfer any of its rights or obligations under this document at its sole discretion, on written notice to you. Engagis may subcontract the performance of its obligations under this document to any person and without notice to you, but will remain liable to you for the performance of its obligations notwithstanding any such sub-contracting.

14.2           Waiver

(a)               A waiver of a right, remedy or power by Engagis must be in writing and signed by Engagis.

(b)               Engagis does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.

(c)               A waiver given by Engagis in accordance with clause 14.2(a):

(i)                is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
(ii)               does not preclude Engagis from enforcing or exercising any other right, remedy or power under this EULA nor is it to be construed as a waiver of any other obligation or breach.

14.3           Severance

If a provision in this document is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this document for the purposes of that jurisdiction.  This does not affect the validity or enforceability of the remainder of the provision or any other provision of this document.

14.4           Governing law and jurisdiction

This EULA is governed by and is to be construed under the laws in force in New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in NSW and Courts of Appeal in respect of any proceedings arising out of or in connection with this EULA.  Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

14.5           Further assurances
You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to this EULA and the transactions contemplated by it.

15.6           No reliance
You acknowledge and agree that you have not relied on any statement by Engagis that has not been expressly included in this document.

14.7           Entire agreement

(a)               This EULA constitutes the entire agreement between you and Engagis regarding access and use of the Software and Services, and subject to sub-clause (b), supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

(b)               This EULA does not supersede any Engagis Purchase Order in respect of any Engagis Software Product.

(c)               Your use of other products, Devices, software or services may be subject to further terms.

14.8           Exercise of rights

(a)               Unless expressly required by the terms of this document, Engagis is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this document.

(b)               Engagis may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this document.  You must comply with any such conditions when relying on the consent, approval or waiver.

14.9           Clauses that survive termination

(a)               Each indemnity offered by you in this EULA is a continuing obligation, independent from the other obligations of the parties and survives the termination of this EULA.  It is not necessary for Engagis to incur expense or make payment before enforcing a right of indemnity against you under this EULA.

14.10        Interpretation

In this EULA unless a contrary intention is expressed:

(a)               headings and italicized, highlighted or bold type do not affect the interpretation of this EULA;

(b)               the singular includes the plural and the plural includes the singular;

(c)               other parts of speech and grammatical forms of a word or phrase defined in this EULA have a corresponding meaning;

(d)               a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);

(e)               a reference to a document (including this EULA) includes all amendments or supplements to, or replacements or novations of, that document;

(f)                a reference to a party to any document includes that party’s successors and permitted assigns;

(g)               a reference to an agreement other than this EULA includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;

(h)               a reference to a document includes any agreement or Purchase Order in writing, or any certificate, notice, deed, instrument or other document of any kind;

(i)                a provision of this EULA may not be construed adversely to a party solely on the ground that the party (or that party’s representative) was responsible for the preparation of this EULA or the preparation or proposal of that provision;

(j)                a reference to a body, other than a party to this EULA (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;

(k)               the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in this EULA do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary;

(l)                a reference to ‘$’, ‘A$’, ‘AUD’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia;

(m)             a reference to time is to time in Sydney, New South Wales, Australia;

(n)               if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;

(o)               if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and

(p)               if anything under this EULA is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.

15. Contact

In the event that you need to contact Engagis regarding this EULA, the Software and/or the Services, please use the following details.

Engagis Pty Ltd
Level 12, 213 Miller Street, North Sydney, NSW 2060, Australia
Telephone +61 (2) 8039 0647
Email support@engagis.com