End User License Agreement (EULA)

IMPORTANT: DO NOT INSTALL OR USE THE PRODUCT UNTIL YOU HAVE READ AND AGREED TO THIS END USER LICENSE AGREEMENT.

This AGREEMENT is made between:

PLD Organisation Pty Ltd (ACN 125 911 711) of 116 Parry Street, Perth, WA 6000, Australia (“Licensor”)

– and –

Licensee (“You”)

(Each a Party, and together, the “Parties”).

1.  DEFINITIONS AND INTERPRETATION

1.1.  Definitions

In this Agreement (including the recitals) unless the context otherwise requires:

1.1.1.  Agreement means this agreement and its schedule;
1.1.2.  Product means ALTR as detailed in Schedule 1;
1.1.3.  Terms means the terms and conditions of this Agreement.

1.2.  Interpretation

In this Agreement unless the context otherwise requires:

1.2.1.  headings are for convenience only and do not affect its interpretation and construction;
1.2.2.  the singular includes the plural and vice versa;
1.2.3.  words importing a gender include other genders;
1.2.4.  where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
1.2.5.  a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
1.2.6.  “includes” is not a word of limitation;
1.2.7.  a reference to any thing is a reference to the whole and each part of it;
1.2.8.  a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
1.2.9.  a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.

2.   ACCEPTANCE

This Agreement is between You and the Licensor, and governs the Product made available to You upon:

2.1. selecting the ‘Accept’ option;
2.2.  payment of the license fee for the Product at the point of purchasing the licence for the Product; or
2.3.  upon downloading, installing or using the Product (whichever comes first), You are granted a revocable, non-transferable, non-exclusive and limited licence (“Licence“) strictly in accordance with the Terms of this Agreement.

If You do not agree to the Terms of this Agreement, You must not use the Product.

3.  LICENSE GRANT

3.1. This Agreement entitles You to use the Product on any computer or mobile device.
3.2.  Subject to the terms and conditions of this Agreement, Licensor hereby grants to You a nonexclusive, non-transferable license to use the Product in accordance with the terms of this Agreement. Unless otherwise identified, the Product is licensed for twelve (12) months.
3.3.  The grant of rights to the Product is not a sale. Licensor and its third party providers reserve all rights not expressly granted by this Agreement.

4.  USE OF PRODUCT

4.1.  You are permitted to use the Product only for Your own internal business purposes.
4.2.  You may, upon prior written notice to Licensor, permit Your third party contractors to access and use the Product solely on behalf of, and for the benefit of, You, so long as:

4.2.1.  contractor agrees to comply fully with all terms and conditions of this Agreement as if they were You;
4.2.2.  You remain responsible for each contractor’s compliance with this Agreement and any breach thereof;
4.2.3.  any Limitation includes licenses allocated to Contractors; and
4.2.4.  the contractor is not a competitor of Licensor.
4.2.5.  All rights granted to any contractor hereunder terminate immediately upon conclusion of the services rendered to You that gives rise to such right. Upon termination of such rights, contractor must immediately cease all use of the Product, uninstall and destroy all copies of the Product and any other Licensor information in its possession, and must certify in writing upon Licensor request of compliance with this section.

5.  LIMITATIONS

5.1.  Limitations on Transfer

5.1.1.  You may not assign Your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Product.

5.2.  Limitations on Use

You may not:

5.2.1.  share the Licence, or contents of the Product, with others,
5.2.2.  copy, install or use the Product on any system with more than one computer; or permit the use, copying or installation of the Product by more than one user or on more than one computer unless You hold multiple, validly, licensed copies.
5.2.3.  decompile, “reverse engineer”, disassemble, or otherwise attempt to derive the source code for the Product;
5.2.4.  broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Product or any part of the product
5.2.5.  post the Product or part of the Product on any website; or
5.2.6.  use the Product for purposes other than those for which it is designed.

5.3.  Limitations on Derived Works

5.3.1.  You may not modify the Product, create derivative works based upon the Product, or use the Product to develop any product having the same primary function as the Product.

5.4.  Limitations on Alteration

You may not:

5.4.1.  modify the Product or create any derivative work of the Product or its accompanying documentation. Derivative works include but are not limited to translations; or
5.4.2.  alter any files or libraries in any portion of the Product.

5.5.  Limitations on Copying

5.5.1.  You may not copy any part of the product except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.

6.  OWNERSHIP

6.1.  Licensor or its subsidiaries, affiliates, and suppliers retain all rights, title and interest, including all copyright and intellectual property rights, in and to, the Product and all copies thereof.

7.  WARRANTIES AND EXCLUSIONS

7.1.  LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE ERROR-FREE OR THAT LICENSOR WILL CORRECT ALL PRODUCT ERRORS INCLUDING THOSE DESIGNATED AS MEDIUM OR LOW SEVERITY LEVEL ISSUES. ALL CONDITIONS, TERMS AND WARRANTIES THAT ARE OR MIGHT OTHERWISE BE IMPLIED BY LAW, PRACTICE, TRADE USAGE OR INTERNATIONAL CONVENTION, ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
7.2.  COMPETITION AND CONSUMER ACT 2010 (CTH) LIMITS. PROVISIONS OF THE COMPETITION AND CONSUMER ACT 2010 (CTH) AND AUSTRALIAN CONSUMER LAW AND OTHER STATUTES IN SOME CASES EITHER CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED; OR CAN ONLY BE RESTRICTED OR MODIFIED TO A LIMITED EXTENT (“IMPLIED TERM”). IF ANY PROVISIONS OF THOSE TYPES DO APPLY, THEN TO THE EXTENT PERMITTED BY LAW LICENSOR’S LIABILITY UNDER THOSE PROVISIONS IS LIMITED AS FOLLOWS. LICENSOR’S LIABILITY IS LIMITED, AT ITS OPTION – IN THE CASE OF GOODS, TO REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; OR REPAIR OF THE GOODS; OR PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND IN THE CASE OF SERVICES, TO SUPPLYING THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
7.3.  LICENSOR WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED BY THE UNAUTHORISED USE OF THE PRODUCT OR ACTS OF ABUSE OR MISUSE BY YOU. IN ADDITION, LICENSOR WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE PRODUCT OR THE LOSS OR CORRUPTION OF YOU’S DATA OR FILES PROCESSED OR STORED BY THE PRODUCT.

8.  LIMITATION OF LIABILITY AND REMEDIES

8.1.  To the extent that the applicable jurisdiction limits Licensor’s ability to disclaim any implied warranties, this disclaimer shall be effective to the maximum extent permitted.
8.2.  DISCLAIMER. NEITHER LICENSOR NOR LICENSOR’S THIRD PARTY SUPPLIERS WILL BE LIABLE, REGARDLESS OF THE CAUSE (AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STATUTE OR OTHERWISE), FOR: (I) LOSS OR DAMAGE TO PROFITS, SALES, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS; OR (II) PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, MULTIPLE OR INDIRECT DAMAGES; EVEN IF LICENSOR OR LICENSOR’S THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.3.  MAXIMUM LIABILITY. IN ANY EVENT, LICENSOR’S OR THIRD PARTY SUPPLIER’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN RELATION TO THIS AGREEMENT OR ANY SCHEDULE (IN TORT (INCLUDING NEGLIGENCE) CONTRACT, STATUTE OR OTHERWISE) WILL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO LICENSOR UNDER THE APPLICABLE SCHEDULE.
8.4.  EXCLUSIONS. THE FOREGOING DISCLAIMER SET FORTH DOES NOT APPLY TO YOUR BREACH OF SECTION ON “LIMITATIONS” OR LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION ON “INDEMNITY”.
8.5.  THE FOREGOING MAXIMUM LIABILITY SET FORTH DOES NOT APPLY TO YOUR BREACH OF SECTION ON “USE OF PRODUCT”, YOUR OBLIGATIONS TO PAY AMOUNTS DUE UNDER SCHEDULE 1, OR LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION ON “INDEMNITY”. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT EITHER PARTY’S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF A PARTY OR ITS EMPLOYEES ACTING IN THE COURSE OF THEIR EMPLOYMENT; (II) FRAUD; OR (III) ANY OTHER CAUSE OF ACTION WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

9.  FEES; PAYMENT TERMS

9.1.  You will pay to Licensor, or Licensor’s authorised designee or agent, the license, maintenance, training and any other fees set out in Schedule 1. All fees identified in Schedule 1 or this Agreement and any applicable taxes are due and payable within fourteen (14) days from the date of Licensor’s invoice.
9.2.  In case of failure or delay in any payment of the fees, you will not able to use any features of the Product until the payment due has been fully paid. Further, the Licensor shall have the right to temporarily suspend or terminate your use of the Product at any time in its sole discretion.
9.3.  Unless otherwise identified in Schedule 1, all fees are stated in and will be paid in Australian dollars.
9.4.  Unless otherwise expressly stated, all fees payable or to be provided in Schedule 1, this Agreement, or in any future agreement to be agreed between you and Licensor are inclusive of 10% GST. You will pay the GST and all federal, state and local sales, use, property, excise, and other taxes imposed on or with respect to this Agreement or Schedule 1 for the Product and/or services provided hereunder. If any sale, use, excise or other taxes (except for taxes based on Licensor’s net income) are assessed against or required to be collected in connection with this Agreement or Schedule 1, Licensor will itemise such taxes on invoices issued in connection with Schedule 1.

10.  INDEMNITY

10.1.  You will indemnify Licensor, its directors, officers, employees, agents and contractors in full against any liability, loss, damages, costs and expenses as a result of or in connection with Your use of the Product, including but not limited to, any modification by You of the Product which causes the Product to infringe the intellectual property rights of a third party.
10.2.  Licensor will have no obligation to indemnify You under this Section if the infringement or misappropriation results from Your (i) modification of the Product; (ii) combination, operation or use of the Product with non-Licensor software Product if such claim of infringement or misappropriation would have been avoided had such combination, operation or use not occurred; (iii) use of the Product in breach of this Agreement or Schedule 1; or (iv) use of other than the most current release of the Product if such claim of infringement or misappropriation could have been avoided by Your use of such current release of the Product, provided Licensor delivered such superseding version to You and notified You of the need to use such version.

11.  VARIATION OF TERMS

11.1.  Licensor reserves the right to amend these Terms from time to time without notice to You and You will be subject to the Terms in force at the time You purchase the Licence for the Product or download the Product whichever is applicable.

12.  TERMINATION

12.1.  Without prejudice to any other rights, Licensor may terminate this Agreement immediately and without further notice if You fail to comply with the Terms of this Agreement. In such event, You will no longer have access to the Product.
12.2.  Upon: (i) expiration of a term license to any of the Product, unless such term license is renewed; (ii) termination or expiration of the license to any of the Product for any reason; (iii) termination of an Schedule, You will immediately cease use of the applicable Product and delete and/or remove all copies of such products from its servers, terminals and other computer systems and promptly return or destroy all copies of the Product, any other Licensor confidential and proprietary information in Your possession. If requested, You will certify compliance with the foregoing in writing.

13.  GENERAL PROVISIONS

13.1.  Force Majeure. Except for Your payment obligations, neither party is responsible from any delay or failure to perform resulting from causes beyond its reasonable control.
13.2.  Assignment. You are not permitted to transfer or assign (by operation of law or otherwise) any of your rights or obligations under a Schedule or this Agreement without the prior written consent of Licensor. Any such transfer or assignment without Licensor’s written consent will be void and of no force and effect.
13.3.  Publicity. Subject to Your consent, which will not be unreasonably withheld, delayed or denied, Licensor may prepare a press release, case study or other collateral regarding Your use of the Products. Otherwise, neither party will use the name of the other party in publicity releases or similar activity without the consent of the other party except Licensor may use Your name in Licensor’s client list.
13.4.  Severability. Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
13.5.  No Waiver. The failure, delay, relaxation or indulgence on the part of a part in exercising, in part or whole, any power, right or remedy conferred upon that party by these Terms shall not operate as a waiver of that power, right, or remedy.
13.6.  Entire Agreement. This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.
13.7.  Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Western Australia.

SCHEDULE 1 – PRODUCT

Name of Product: ALTR

Details of Product: Online platform for student literacy screening

Fees: Subscription fees will vary depending on the number of primary school students enrolled in the school as per ACARA data provided for the prior school year. Actual price will be displayed during the checkout process or within the ‘Subscription’ screen within the ‘Settings’ section of the ALTR platform, accessible only by Principal/Deputy Principal or Administrator users. Should the school feel the enrollment numbers provided by ACARA from the previous year are no longer accurate for the current school year and a different subscription rate should apply, contact should be made via https://support.altr.com.au to resolve this.

Payment Terms: Free trial period may apply, if available.
At the conclusion of any trial period (if available) or upon signing up to ALTR, full payment of subscription fees will be required within 14 days. Failure to make full payment prior to the due date may result in access to ALTR being restricted for all users until payment is made in full.