Terms and Conditions
Data Capture Experts Pty Ltd (“DCE”) is the developer and licensor of DC2Vue and DC2Hub (“Software”), which you desire to license for use. In order to establish the rights and obligations of the parties with respect to the use of the Software, and the Software support, as evidenced by the signatures above of authorised representatives of the respective parties, we agree as follows:
1. GRANT OF LICENCE.
This End User Licence Agreement (“EULA”) grants you the right to use the Software only for its intended purpose from the Effective Date for the duration and extent for which you have paid the appropriate licence fee. The licence will include any upgrades and new version releases to the Software that may be provided to you from time to time (as and when available as part of the Software support). You may not sell, resell, licence, rent, lease, lend, or otherwise transfer for value, the use of or installation of the Software. You may not redistribute the Software in any form or broadcast it in any media.
2. RESERVATION OF RIGHTS
All title and copyrights in and to the Software, and any copies of the Software, are owned by DCE and/or its technology partners. All rights not expressly granted are reserved by DCE and/or its technology partners. In particular, this EULA does not grant you any rights in connection with any trademarks or service marks of DCE and/or its technology partners. Use of the Software for any purpose other than expressly permitted in this EULA is prohibited.
Without prejudice to any other rights, DCE may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software. Either party may terminate this EULA and the licence by providing 30 days’ notice to the other in writing. Upon termination, DCE will refund to you such remaining amount of the licence fee paid in advance less the pro-rated amount for which you have used the Software up until the date of termination.
4. SPECIFIC USE
DCE and/or its affiliates make no representations about the suitability of the Software for any purpose. This Software is provided by DCE “as is” and subject to clause 12, any express or implied warranties, including, but not limited to, the implied warranties or merchantability and fitness for a particular purpose are disclaimed. Nothing in this EULA seeks to exclude any liability that cannot be limited or excluded by law.
5. ACCOUNTS AND PASSWORDS
You are responsible to maintain the confidentiality of your password and shall be responsible for all uses via your registration and/or login, whether authorised or unauthorised by you. You agree to immediately notify DCE of any unauthorised use or your registration, user account or password.
6. LICENCE FEES
You will pay DCE the monthly user licence fee. User licence fee is calculated per named active user/month.
7. CONTRACT TERM
The minimum signup period is 24 months. If the service is cancelled during this time, then 40% of the remaining contract value will be levied. After 24 months, the service can be cancelled at any stage with only 1 month’s written notice.
8.INVOICES AND PAYMENT.
The licence fees will be invoiced quarterly in advance by DCE and payable within thirty (30) days after receipt.
9. SUPPORT SERVICES.
DCE will provide support services for which You have paid the required licence fees. Customers who have implemented DC2Vue from DCE professional services can have the end-to-end protection of ongoing telephone, email and or on-site support for troubleshooting, problem determination and responding to production emergencies. Support tickets are logged via a dedicated web-based support portal. You have 8 hour x 5 day telephone support, email and or on site in your local time zone with an unlimited number of telephone and email support requests.
10. YOUR CONDUCT.
You agree that all information or data of any kind, whether text, software, files, code, music or sound, photographs or graphics, video or other materials (“Content”), publicly or privately provided, shall be the sole responsibility of the person providing the Content or the person whose user account is used. Subject to clause 11, DCE shall not be responsible to you in any way for the Content that appears in the Software nor for any error or omission nor liable for any breaches of any copyright in the content stored in the Software by you and your users. All ownership and intellectual property rights in and to the Content shall remain vested in you and your users (as applicable).
11. CONTENT SECURITY
DCE shall maintain a level of security that ensures that no unauthorised person can gain entry to any area under DCE’s control where your Content is stored or processed. DCE shall implement security measures that are at least equivalent to the security measures it implements for its own data and, in any event, that are reasonable and appropriate, to protect your Content from unauthorised physical or electronic access, whether deliberate, reckless, negligent or otherwise, including virus-screening procedures to prevent the disclosure or corruption of your Content through the influence of malware. DCE shall notify you promptly, and in any event within 24 hours, whenever DCE reasonably believes that there has been any unauthorised access, use, disclosure or destruction of your Content (“Security Breach”) and shall provide to you information regarding the nature and scope of the Security Breach, the actual or potential cause of the Security Breach and measures being taken by DCE to investigate the Security Breach, correct or mitigate the Security Breach and prevent future security breaches.
DCE warrants that the Software (excluding the Content as defined in clause 10) and all other information supplied by DCE in relation to the Software complies with applicable laws and does not infringe the intellectual property rights of any third party and that it has obtained all necessary rights, licences and consents to allow you to use the Software in accordance with this EULA.
DCE shall indemnify and hold you harmless from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against you arising out of a breach by DCE of any of the following clauses: clause 11, clause 12 or clause 1818. This indemnity shall not be subject to any limitation of liability
14. THIRD PARTY SERVICES
Goods and services of third parties may be advertised and/or made available on or through this Software. Representations made regarding products and services provided by third parties are governed by the policies and representations made by these third parties. DCE shall not be liable for or responsible in any manner for any of your dealings or interaction with third parties.
15. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL DCE BE LIABLE TO YOU FOR ANY LOST PROFITS, OR FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, ARISING OUT OF THE USE OF (OR INABILITY TO USE) THE SOFTWARE OR THE PROVISION OF SERVICES HEREUNDER, EVEN IF DCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. YOUR LIMITATION OF LIABILITY
To the maximum extent permitted by law, you shall not be liable to DCE for any loss of actual or anticipated income; loss of actual or anticipated profits; loss of contracts; or special, indirect or consequential loss or damage of any kind, howsoever arising in connection with this EULA, whether in contract, tort (including negligence), breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act 1988 (Cth)) or otherwise, including under any indemnity obligations under this EULA. To the maximum extent permitted by law, your maximum aggregate liability to DCE under or in connection with this EULA, whether in contract, tort (including negligence) breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act 1988 (Cth)) or otherwise (including under the indemnity obligations under this EULA), shall not exceed an amount equal to 100% of the licence fees paid or payable by you under this EULA to DCE during the 12 months immediately preceding the relevant claim.
17. PROFESSIONAL SERVICE ENGAGEMENTS
All professional services engagements shall be performed under a separate professional services agreement, mutually agreed upon in writing by authorised representatives of each of us.
18. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
Each party acknowledges that the other’s business depends on the preservation of its trade secrets and other confidential information (the "Secrets"). Both Parties will each take any and all reasonable action to protect and preserve as confidential during or after the term of this Agreement all of the Secrets of the other disclosed to or known by such party or in such party’s possession or control, whether wholly or partially developed by such party or provided to such party, except to the extent: (a) authorised to do so in writing by the other party; (b) such Secret was already known by or generally available as part of the public domain prior to its disclosure to such party, or becomes so available through no fault of such party; (c) such Secret is independently developed by such party or is received from a third party with no breach of a duty owed to the other party; or (d) such Secret is required by law to be divulged by such party, provided that such party gives the other party as much prior notice of such requirement and opportunity and cooperation in contesting the same as practicable. Nothing in this EULA shall transfer any ownership, licence or any other rights of one party to the other in respect of the Secrets.
Each party warrants and undertakes that: it will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 ("Relevant Requirements"); and it has and shall maintain in place throughout the Term all policies and procedures necessary to ensure compliance with the Relevant Requirements.
If you use the Software in Australia, this EULA is governed by the laws of the State of Victoria. If you use the Software outside Australia, then local laws may apply. In the event that this EULA conflicts with any law under which any provision may be held invalid by a court with jurisdiction over the parties, such provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law, and the remainder of this EULA will remain valid and intact. The failure of either party to assert any right under this EULA shall not be considered a waiver of any that party’s right and that right will remain in full force and effect. We may assign our rights and obligations under this EULA and we shall be relieved of any further obligation. Should you have any questions concerning this EULA, or if you desire to contact DCE for any reason, please contact us on +61 3 9863 7644, or write to: Data Capture Experts Pty Ltd. Level 1, 1 Queens Rd, Melbourne VIC 3004
DC2Vue and DC2Hub are trademarks of Data Capture Experts Pty Ltd.