Terms and Conditions
Inhabit Place - Application End User Licence Agreement (EULA)
This Agreement is between You and [Inhabit Place] (ABN 93 629 209 436) ([Inhabit Place]) or our or we) and governs the use of the Inhabit Place Application ("Application") and the sale and use of the Inhabit Place Application software services ("Application Services").
The Application provides you with an opportunity for trained users to access forms to audit a space's use, provide formatted reports generated from the data to allow space's performance to be tracked over time
2. Application Service Licence
accepting an agreement for the Application Services; or
payment of the license fee for the Application Services at the point of purchasing the licence for the Application Services; or
using the Application Services (whichever comes first),
You are granted a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to access and use the Application Services in accordance with this EULA ("Application Service Licence").
The Application Service Licence will be for the term applicable to the particular Service subscription plan as detailed on the Order Form, Invoice or otherwise notified to You prior to or at the point of Your order being accepted ("Licence Term"). Subject to the Order Form, the applicable Licence Term will expire automatically at the conclusion of the Licence Term, unless terminated earlier in accordance with this EULA.
Each and any recurring subscription payment for Application Services received by Inhabit Place will constitute an offer by You to enter into a new Application Service Licence on Inhabit Place 's then terms and conditions.
3. Delivery of Application Services
On registration and payment for Application Services, Inhabit Place will provide You with a password to use the Application Services. For the avoidance of doubt, delivery will be completed and Inhabit Place"s obligations in respect thereof satisfied upon Inhabit Place making the Application Services available.
Support levels for Your Service subscription plan are detailed in the Order Form.
You are responsible for all costs and expenses associated with accessing or using the Application or Application Services, including but not limited to hardware, software and internet expenses.
4. License Conditions
This Agreement entitles You to use the Service as specified on an Order Form or Invoice.
You may not assign Your rights and obligations under this EULA, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Application Services.
You may not:
share the Application Service Licence with others;
permit the use of the Application Services by more than one user, unless You hold multiple valid licenses.
Save and except for Client Content and Specific Deliverables owned by You pursuant to clause 5, you may not:
broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Application Services or any part of Application Services
post the Application Services or part of the Application Services on any website;
use the Application Services as a service bureau; nor
create any derivative work of the Application Services or its accompanying documentation. Derivative works include but are not limited to translations.
For the avoidance of doubt, you may share the Specific Deliverables via the Service as follows:
internal meetings, presentations;
external customer meetings;
external supplier meetings,
provided that you otherwise comply with this EULA.
You may not resell the Application Services, without Inhabit Place 's prior written consent.
5. Intellectual property
Unless specified otherwise in this EULA or otherwise agreed by the parties in writing:
Intellectual Property Rights owned by You in Client Content will remain Your property, and Inhabit Place acknowledges that nothing in this EULA transfers title in or ownership of any Client Content to Inhabit Place;
Intellectual Property Rights owned by Inhabit Place in Company Content will remain the property of Inhabit Place, and You acknowledge that nothing in this EULA transfers title in or ownership of any Company Content to You;
Intellectual Property Rights in all source data collected during and/or in respect of the Application Services and/or entered into the Application, will vest in creation in the Company (Source Data);
Intellectual Property Rights in all content developed by the Company specifically for the Client, including Comparison Reports and/or Recommendation Reports will vest on creation in the Client (Specific Deliverables).
Specific Deliverables You grant to Inhabit Place an irrevocable, non-exclusive, non-transferable, royalty free licence to make such use of the Client Content as is, in the reasonable opinion of Inhabit Place, necessary to provide the Application Services as set out in this EULA and for the purpose set out in clause 5.10. You shall indemnify Inhabit Place against all Claims made by third parties that the use of the Client Content by Inhabit Place infringes its Intellectual Property Rights.
Inhabit Place grants You an irrevocable, non-exclusive, non-transferable, royalty free licence to make such use of the Company Content during the term of this EULA as is, in the reasonable opinion of Inhabit Place, necessary to use the Application Services.
Inhabit Place maintains a lien over the Specific Deliverables until such time as You have paid all monies owing and have remedied any breach of this agreement.
Inhabit Place and its agents, contractors and employees may access under a royalty free, non-exclusive perpetual licence the Specific Deliverables for the purpose of providing the Application Services and undertaking market research and publishing generic statistics which do not identify You or its contributors as set out in clause 5.10.
Inhabit Place accepts no liability in respect of the Specific Deliverables whatsoever or howsoever arising.
Inhabit Place is under no obligation to maintain, back-up or store the Client Content and/or the Specific Deliverables and You are responsible for regular back-ups and data extraction.
Subject to clauses 5.4 and 5.7:
during the term and for a period of 30 days thereafter, You will be entitled to undertake a data extraction of the Client Content and Specific Deliverables from the Application, at no additional cost; and
in the event that Inhabit Place retains Client Content and Specific Deliverables after the term, subject to clause 5.8(a) Inhabit Place may charge a fee, at its discretion, for data extraction requested by You.
Except as required by law, the parties must not disclose to any person without Inhabit Place 's prior written consent the existence of, or details in, this EULA or any other Client Content, Company Content or Specific Deliverables which is confidential and not otherwise in the public domain.
Despite clause 5.9, Inhabit Place may sell data (including Source Data) and statistics connected in connection with the Application Services.
6. Your Obligations
You may not use the Application or Application Services for any unlawful activity nor for any activities that breach any laws, infringe a third party 's rights or are contrary to any relevant standards or codes.
You covenant and warrant that:
all information and data provided by You to us (including billing and contact details provided as part of the customer registration process) or otherwise is true, accurate, complete and up to date;
the person receiving, accessing or using the Application Services is authorised by You to do so;
You have and will comply with all relevant laws relating to Your use of the Application and Application Services and Your placement of any order to us;
You agree not to broadcast, publish, upload, transmit, post or distribute on the Application abusive or objectionable content, including but not limited to discriminatory, racists, pornographic, threatening or abusive material;
You will ensure that any log in information and password that is used to access the Application and Application Services and the details of Your account is kept in a safe and secure manner;
You will promptly notify us if You are or become aware that there is or has been an unauthorised use of Your account, or any other security breach relating to Your account;
You are responsible for any costs associated with Your access to or use of the Application and Application Services, including Internet access fees;
You are responsible and liable for any person that uses Your user access details and/or password to order Application Services through the Application;
You agree that we may charge You for all Application Services that we agree to supply to You that have been ordered by You or using Your account.
You must not tamper with or hinder the operation of the Application or Application Services, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Application or via the Application Services.
Inhabit Place shall not be liable for any damages (including damages for inability to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of Your passwords.
You must not use the Application Services or Application other than in accordance with this EULA and conditions.
Breach of this clause may result in immediate termination or suspension of the Application Service Licence.
7. Price and Costs
The subscription price of the Application Services is stated in the Order Form.
Unless your Application Service Licence is for a fixed term or project, Inhabit Place may amend the Price at any time by providing 30 days ' notice in writing to You.
Inhabit Place will invoice You for Application Services supplied, or where purchased in advance You will be provided with a receipt.
The subscription price of the Application Services is in Australian dollars and is inclusive exclusive of GST, or any other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Application Services.
You must pay invoices with 30 days of receipt or as otherwise directed by Inhabit Place.
You must pay all amounts due to Inhabit Place:
without set-off, deductions, counter-claims or conditions; and
in available cleared funds.
If You owe any amount to Inhabit Place, Inhabit Place may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
withhold all future supplies of Application Services until that amount has been paid in full;
set-off that amount against any amount owing by Inhabit Place to You; and/or
immediately demand all amounts due and payable under this EULA.
If an amount due under this EULA is paid after the due date You must pay Inhabit Place, in addition to the overdue amount:
interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
all costs and expenses incurred by the Inhabit Place in collecting the overdue amount.
Your obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Application Services.
8. Warranties and exclusions
Inhabit Place provides Application Services "as is" and You agree that the existence of errors in Application Services will not constitute a breach of this EULA. Unless otherwise explicitly agreed to in writing by Inhabit Place, subject to the Implied Terms, all representations, guarantees, conditions and warranties of any nature are expressly excluded.
Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Inhabit Place and its subsidiaries, affiliates, and suppliers ("Implied Terms"). If these Implied Terms apply, Inhabit Place 's liability will be limited at its option to resupply, repair or replacement of the Product or Application Services, or the cost of such resupply, repair or replacement, to the extent permitted by law.
Nothing in this clause excludes, restricts or modifies Your rights under an Implied Term.
9. Limitation of liability
Subject to any Implied Term, and to the extent permitted by law, Inhabit Place or any of its officers, employees, contractors or agents will not be liable to You for any Losses incurred by You or Claims made by You as a result of using the Application, Application Services and any documentation provided to You or any linked website and/or the development or handling of any Specific Deliverables.
Inhabit Place 's liability is reduced proportionately in the event that You contributed to any Claim or Loss suffered by You.
To the maximum extent permitted by law, Inhabit Place 's maximum and aggregate liability for all Losses or Claims in connection with this EULA shall be limited to the price of the Application Services.
10. Licensee indemnity
You will indemnify Inhabit Place, its directors, officers, employees, agents and contractors in full against any Claims or Losses as a result of or in connection with Your use of the Application, Product and Application Services and/or the development or handling of any Specific Deliverables.
12. Variation of Terms
Inhabit Place reserves the right to amend this EULA from time to time. Such amendments will be either: (a) published on the Application from which the Application Services were purchased; (b) notified to You via email directing You to a link; or (c) notified to You by post. Such amendments shall commence as and from:
the Commencement of year next billing cycle if you have procured the Application Services via the Application;
the commencement of the next term, if you have procured the Application Services by way of Order Form or direct interaction with Inhabit Place.
Without prejudice to any other rights, Inhabit Place may terminate this EULA immediately and without further notice if You fail to comply with this EULA.
Inhabit Place reserves the right at any time to modify or discontinue, temporarily or permanently, the Application Services (or any part thereof) with or without notice, in which event You shall be given a pro rata refund for that portion of the Application Services Licence fee already paid for at the time of discontinuation and which cannot be used after discontinuation.
Where You have a Service subscription plan and you cancel part way through a period, your subscription fee for that entire period remains payable to Inhabit Place and is non-refundable.
14. General provisions
If any provision of the Agreement is prohibited, illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of this EULA.
The failure, delay, relaxation or indulgence by a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this EULA shall not operate as a waiver of that power, right, or remedy. All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.
This Agreement shall be governed by and construed in accordance with the laws of New South Wales.
15. Definitions and interpretation
In this EULA unless the context otherwise requires:
Agreement means this agreement, all schedules and, if the Application Services were not purchased on the Application, an Order Form;
Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown;
Company Content means all documents, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by Inhabit Place to You in relation to the performance of the Application Services, and includes the Source Data.
Intellectual Property Rights means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of copyright, 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;
Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower; Invoice means an invoice issued by Inhabit Place to You;
Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental;
Order Form means an order form agreement signed by the Parties for the purchase of Products and/or Application Services;
You means a person visiting the Application or the person named on the Order Form, or where the Products or Application Services are purchased, the person who has purchased the Products or Application Services.
Version Date: 28 November 2018