This End-User License Agreement (“EULA”) is a legal agreement between Expedio Services Pty Ltd ACN 144 662 760 (“Expedio” or “Licensor”) and user of the Software (“End User” or “Customer”) has agreed to avail such services, on the terms and conditions as set forth in this EULA. Expedio is engaged in the business of developing, selling, marketing and maintaining software products, services and solutions for customers in the mining and exploration industry (“Software”). The Licensor and the End User together shall be referred to as the “Parties” and individually shall be referred to as a “Party”.
The Customer’s access to and use of the Software is conditioned on its acceptance of and compliance with these terms. By accessing or using the Software, the Customer agree to be bound by these terms and conditions set out in this EULA. If the Customer disagrees with any part of the terms, then it may not access the Software.
1. License
1.1. License. Subject to the provisions of this EULA, the Licensor grants to the End User a non-transferable, non-sub-licensable, and non-exclusive licence to use, solely in the field and solely in object code form, the Software on either of the following deployment models:
(a) hosted with Rock IT,
(b) hosted on the End User’s cloud server; or
(c) hosted on the End User’s physical server.
1.2. Reservation of rights. Except for the licence explicitly granted by Clause 1.1, the Licensor reserves all its rights. The End User acknowledges and agrees that the End User is licensed to use the Software only in accordance with the express provisions of this EULA and not otherwise. Licensor reserves the right to change the prices and terms and conditions of this EULA.
1.3. No support, etc. Unless otherwise agreed by the Parties in writing, the Licensor shall have no obligation to upgrade, update, bug-fix, to provide support or maintenance services, or to provide assistance or consultancy services in relation to the Software.
2. Use of Software
2.1. Restrictions. Except to the extent permitted by applicable mandatory law, the End User shall not, unless expressly permitted by any other agreement entered into between the End User and the Licensor:
(a) copy or reproduce the Software;
(b) merge the Software with any other software;
(c) translate, adapt, vary, or modify the Software;
(d) disassemble, decompile, or reverse engineer the Software, or otherwise attempt to derive the source code of the Software;
(e) provide, disclose, demonstrate, or otherwise make available the Software to any third party;
(f) use the Software to provide any services or training for any third party; or
(g) sell, lease, rent, transfer, hire-out, license, sub-license, assign, distribute, publish, charge, pledge, encumber, commercially exploit, or otherwise deal with the Software, or have any software written or developed that is based on or derived from the Software.
2.2. Acceptance of Third-Party Terms. The End User acknowledges that in installing the Software, it may also be required or have the option to install third party software (“Third Party Software”), and the End User agree that if it installs the Third Party Software, the End User shall agree to the terms of such Third Party Software (“Third Party Terms”) prior to installation, and that if the End User does install the Third Party Software with or without review of the Third Party Terms, then such installation shall constitute and be deemed acceptance in full of the Third Party Terms by the End User.
2.3. Usage of data. Each Party shall comply with its respective obligations under applicable data protection laws. Each Party shall maintain appropriate administrative, physical, technical and organisational measures that ensure an appropriate level of security for Confidential Information (defined below) and personal data. The End User is responsible for ensuring that the security of the software and services are appropriate for its intended use and the storage, hosting, or processing of personal data and any other categories of data.
3. License Fee
3.1. Fee. The End User shall pay to Expedio the License fee as agreed between the Parties in writing, from time to time (“License Fee”). The invoice shall be generated electronically and sent via soft copy via e-mail only. The License Fee shall be required to be paid in advance, or any other terms expressly agreed upon by the End User and the Licensor and once paid the License Fee shall not be refunded.
3.2. Taxes. All payment due under this EULA are exclusive of all the applicable taxes that may be levied by the Government from time to time, which shall be paid by the End User to the Licensor in addition at the rate and in the manner prescribed by applicable law.
3.3. Withholding of Taxes. If any local law requires the Customer to withhold any tax on amount payable to Licensor, then it shall withhold the tax and remit the balance amount to Licensor. For the Tax withheld, the Customer shall provide to Licensor with the relevant tax certificate(s). In cases where the Customer fails to provide the relevant tax certificates on time, the Customer shall pay the amount equivalent to the withheld tax.
3.4. Goods and Services Tax. Terms used in this clause 3.4 have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Where GST is imposed on any supply made under this EULA by one party (“Supplying Party”) to another party (“Receiving Party”), the Receiving Party must pay or provide the GST exclusive consideration for the supply and, in addition to and at the same time as the GST exclusive consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST exclusive consideration (without deduction or set-off) by the prevailing GST rate. This clause does not apply to a supply for which a GST inclusive consideration has been agreed.
4. Representations and Warranties
4.1. Each Party represents and warrants to the other Party as mentioned hereto that:
(a) Each Party is duly incorporated and existing under the laws applicable on such Party.
(b) The execution and delivery of this EULA by each Party shall be performed as per the transactions contemplated hereby and each Party is duly authorised to perform their respective duties under this EULA. Assuming the due authorisation, execution and delivery hereof by the other Party, this EULA constitutes a legal, valid and binding obligation on each Party to this EULA, which is enforceable against each Party in accordance with its terms and conditions.
(c) The execution, delivery and performance of this EULA by each Party and the transactions contemplated hereby will not:
(i) violate any provision of the organisational or governance documents of each Party;
(ii) violate or conflict with any agreement that the warranting Party may have with any person;
(iii) conflict with or result in any material breach or violation of any of the terms and conditions of, or constitute (or with notice or lapse of time or both constitute) a default under, any instrument, or other agreement to which each Party is a party or by which such Party is bound;
(iv) violate any order, injunction, judgment or decree against, or binding upon, each Party or upon its respective securities, properties or businesses; or
(v) violate any applicable law.
4.2. The express undertakings and warranties given by the Licensor in this EULA are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing or in any other way, including any implied warranty of merchantability, satisfactory quality, fitness for any particular purpose. All of these are excluded to the fullest extent permitted by applicable law. Without limiting the scope of the preceding sentences, the Licensor gives no warranty or guarantee that the Software will meet the End User’s requirements, that the use of the Software will be un-interrupted, or that any errors and/or defects in the Software can or will be corrected.
4.3. The End User acknowledges that it has not relied on any term, condition, representation, warranty, matter, statement or conduct in entering into this EULA that is not expressly stated in this EULA. In particular, the End User has not relied on any descriptions, illustrations or specifications contained in any document.
5. Indemnity
The End User shall at its own expense, defend, indemnify and hold harmless (“Indemnifying Party”) Expedio and each of its affiliates, officers, directors, employees, representatives, successors and permitted assigns (individually and collectively the “Indemnified Parties”), from and against all losses, claims, costs and expenses and liabilities suffered by the Indemnified Parties arising directly from:
(a) any wrongful actions of the Indemnifying Party or the irrespective employees, agents and representatives or out of breach of this EULA;
(b) violation of any applicable law;
(c) negligence, wilful misconduct, or wrongful act or omissions in connection with the Software;
(d) any third party claim which may arise against Expedio in relation to third party agreement; or
(e) any use by the End User of the Software in a manner which infringes or violates the Intellectual Property rights of Expedio.
6. Limitation of Liability
6.1. The End User agree that the Licensor shall not be liable for any damages suffered by the End User or any third party, including without limitation, any direct or indirect, incidental, punitive, exemplary, special or consequential damages (including, without limitation, any reputational damages, any lost profits, damages for business interruption, or loss of information, programs or other data) that result from access to, link to, use of or inability to use the Software or due to any breach of security associated with the transmission of information through the internet, regardless of the theory of liability and even if foreseeable or even if either party was advised of the possibility of such damages.
6.2. If, despite this liability limitation, We have any liability to You or any third party for any damages (whether in contract, tort, negligence, by statute or otherwise), including the Software covered by this EULA, shall be the payment of direct damages only which shall be limited in accordance with the provisions of this Clause 6 and be limited to the fees paid and payable by You under this Agreement for the three (3) months immediately prior to the event giving rise to the claim for such damage. No claim may be pursued by You more than one (1) year after the facts giving rise to such claim have arisen. This liability limitation forms an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement does not fully compensate You for any losses.
7. Acknowledgement and Disclaimers
7.1. Acknowledgements. The End User acknowledges and agrees that software in general is not error-free and agrees that the existence of any errors in the Software shall not constitute a breach of this EULA by the Licensor.
7.2. Viruses, etc. The Customer agrees to conduct appropriate virus scanning of the Software prior to installation and use, if required.
7.3. DISCLAIMER. Except as expressly provided herein, the End User accepts the software “as is” and acknowledges that Expedio makes no other warranty of any kind whether express, implied, statutory or otherwise, and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Expedio further disclaims any warranty that the software will meet the End User’s needs or expectation, be error free, or that the operation of the software will be uninterrupted, or the software errors be corrected.
8. Intellectual Property Rights
8.1. All right, title and interest in and to all:
(a) registered and unregistered trademarks, service marks and logos (including all goodwill associated with any trademarks or trade and business names);
(b) copyright, copyright applications, and copyrightable ideas, and/or concepts, moral rights, databases, domain names, and including all registrations and applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
(c) trade secrets, proprietary information, and knowhow;
(d) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired;
(e) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, Software;
(f) any patents, registered designs, design rights; and
(g) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with the Software (“Intellectual Property”),
are owned by Expedio or its licensors, as the case may be, and the End User agrees to make no claim of interest in or ownership of any such Intellectual Property rights. The End User acknowledges that no title to the Intellectual Property rights is transferred to the End User, and that the End User does not obtain any rights, express or implied on the Intellectual Property rights.
8.2. To the extent that the End User creates any derivative work (any work that is based upon one or more preexisting versions of a Software provided to the End User, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such pre-existing works may be recast, transformed or adapted) such derivative work shall be owned by Expedio and all right, title and interest in and to each such derivative work shall automatically vest in Expedio for all times. Expedio shall have no obligation to grant any right in any such derivative work to the End User and shall be entitled to require the End User to cease and desist from using or permitting use of the same at its sole discretion.
8.3. Any data provided to Expedio and any configuration that has been done on the Software by the End User will remain the Intellectual Property of the End User. The End User hereby agrees and acknowledges that the source code, the application, the Software and any other derivatives will be the Intellectual Property of Expedio.
9. Confidentiality
9.1. In this clause 9, “Confidential Information” means any information which is disclosed by either party to the other party pursuant to or in connection with this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) including, but not limited to, any technical, financial, operational or any other information that is related to the business of either party but excludes information that is in or enters the public domain other than through an unauthorised act or breach of confidentiality of the receiving party.
9.2. The End User may use Confidential Information only in connection with the End User’s use of the Software as permitted under this EULA. The End User will not disclose Confidential Information during the Term or at any time during the 5 (five) year period following the end of the Term. The End User will take all reasonable measures to avoid disclosure, dissemination or unauthorised use of Confidential Information, including, at a minimum, those measures the End User takes to protect the End User’s own Confidential Information of a similar nature. The End User will not issue any press release or make any other public communication with respect to this EULA or the End User’s use of the Software.
9.3. The obligations of confidentiality shall not apply to Parties when:
(a) the Confidential Information becomes generally available to the public other than as a result of disclosure by or at the direction of a Party or any of its Representatives in violation of this EULA;
(b) disclosure by Parties to its representatives provided such Representatives are bound by similar confidentiality obligations;
(c) disclosure, after giving prior notice to the other Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality;
(d) required under the rules of any stock exchange; or
(e) required by any applicable law or government regulations or generally accepted accounting principles applicable to any Party or judicial or regulatory process or in connection with any judicial process, regarding any legal action, suit or proceeding, arising out of or relating to this EULA.
10. Non-Compete and Non-Solicitation
10.1. Notwithstanding anything contrary elsewhere in this EULA, the End User covenants that it will not, whether on its own account or jointly or in conjunction with or on behalf of any other person, directly or indirectly:
(a) be concerned or interested in any capacity whatsoever (whether as a principal partner, franchisee, shareholder, manager, agent, consultant, advisor, financier or otherwise) with any competitor, or carry on a similar business in any manner whatsoever that competes with business of the Licensor;
(b) canvass, solicit or attempt to solicit business, entice, serve or act for any customers, client or potential client of the Licensor or interfere with relationships between the other Parties to this EULA, any suppliers or customers, who were or are potential customers or suppliers during the period of this EULA; or
(c) employ any employees or former employees who were employed by the Licensor or any of its affiliates or group companies.
10.2. Clause 10.1 shall apply during the term of this EULA or cessation of the term (whichever is later) for a period of:
(a) 24 (twenty-four) months; or
(b) if 24 (twenty-four) months is found to be too long to be unenforceable, 18 (eighteen) months after the cessation of this EULA; or
(c) if 18 (eighteen) months is found to be too long to be unenforceable, 12 (twelve) months after the cessation of this EULA; or
(d) if 12 (twelve) months is found to be too long to be unenforceable, 6 (six) months after the cessation of this EULA.
11. Compliance with Laws
11.1. The End User warrants that it has obtained necessary approval/s, permission from statutory authorities, in respect of their scope of services to be provided under this EULA.
11.2. Licensor warrants that it has obtained necessary approval/s, permission from statutory authorities, in respect of their scope of services to be provided under this EULA.
12. Terms and Termination
12.1. This EULA comes into effect from the date of its acceptance by the Customer and shall remain operative for a period of 3 (three) years from such date. Any extension to this EULA requires express and written consent of both the Parties (“Term”).
12.2. Licensor may terminate this EULA if:
(a) the Customer does not meet its obligation to make payment as per agreed terms; or
(b) the Customer shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for a purpose of bona-fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Customer becomes subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business.
12.3. Consequences of termination. In the event of any termination of this EULA for any reason:
(a) any licence granted by the Licensor under this EULA shall automatically terminate without further notice, and the End User shall make no further use of, or carry out any other activity in relation to, the Software; and
(b) any instalments of the Licence Fee due to be paid after the date of termination shall forthwith become due and payable by the End User, and the Licensor shall be under no obligation to reimburse the whole or any part of the Licence Fee.
12.4. Suspension due to non-compliance with EULA. Notwithstanding other legal remedies that may be available, the Licensor may in its sole discretion limit the Customer’s activity by immediately removing the Customer’s access either temporarily or indefinitely or suspend or terminate the Customer’s membership, and/or refuse to provide the Customer with access to the Software:
(a) if the Customer is in breach any of the terms and conditions of this EULA and/or the terms and conditions of usage of Licensor;
(b) if the Customer has provided wrong, inaccurate, incomplete or incorrect information;
(c) if any of the Customer’s actions may cause any harm, damage or loss to the Licensor or any of the Licensor’s other customers, users, suppliers or contractors; or (d) if the Customer is found or suspected to be found using the Software without authority to do so, or illegally.
13. Dispute Resolution and Governing Law
13.1. This EULA and the rights and obligations thereunder is governed by the laws of Western Australia. Subject to clause 13.2. each party irrevocably submits to the non-exclusive jurisdiction of the courts of Western Australia.
13.2. If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with or arising out of this EULA (whether before or after the termination or breach of this EULA) the concerned representatives of the Parties shall promptly and in good faith negotiate with a view to an amicable resolution and settlement of the dispute. In the event, no amicable resolution or settlement is reached within a period of 30 (thirty) days, such dispute or difference shall be referred by either party to the Small Business Development Corporation to have the dispute resolved by mediation. The Parties must attend the mediation and try to resolve the dispute. Each party must be represented at the mediation by a person who has the authority to enter an agreement to settle the dispute on behalf of the Party. Unless the Parties agree otherwise, the Parties will be equally responsible for the costs of the alternative dispute resolution (this includes the costs of the ADR practitioner, the cost of room hire and the cost of any additional input (including expert reports) agreed by the Parties to be necessary to the conduct of the mediation). The parties must pay for their own costs of attending the mediation or any other alternative dispute resolution procedure. Notwithstanding anything contained herein, the Parties shall have a right to institute legal proceedings to prevent any continuing breach of the provisions of these Terms of Use to seek an injunctive or any other specific relief.
13.3. Notwithstanding anything contained herein, the Parties shall have a right to institute legal proceedings to prevent any continuing breach of the provisions of this EULA to seek an injunctive or any other specific relief.
14. Miscellaneous
14.1. Terms of Use and Privacy of Use. The Expedio terms of use available at rock-it.cloud and the Expedio privacy policy available at rock-it.cloud, as may be updated by us from time to time, apply to the End User’s use of Software.
14.2. Amendments. This EULA may be amended by the Licensor from time to time. You agree to check this page regularly to take notice of any changes We may have made to this EULA.
14.3. Waiver. No waiver shall be deemed effective under this EULA unless in writing signed by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder, and no course of dealing among or between the Parties hereto, shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
14.4. Severability. If any provision of this EULA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remainder of this EULA shall remain in full force and effect, and such holding shall not affect this EULA or any provision hereof in any other jurisdiction. If any provision of this EULA is so held to be illegal, invalid, or unenforceable only in part or degree, that provision shall remain in full force and effect to the extent not held illegal, invalid, or unenforceable.
14.5. Force Majeure. Except for payment obligations for services already rendered, non-performance by either Party of this EULA shall be excused to the extent that performance is rendered impossible by a strike, acts of God, governmental acts or restrictions, failure of suppliers, acts of war or terrorism, or any other reason where failure to perform is beyond the reasonable control of the nonperforming Party. The time for performance of this EULA shall be extended for a period equal to the duration of such events.
14.6. Notice. Expedio may provide any notice to the End User under this EULA by sending a message to the email address then associated with the End User account. The notices provided by Expedio by email will be effective when the email is sent. It is the End User’s responsibility to keep the End User’s email address current. The End User will be deemed to have received any email sent to the email address then associated with the End User account when Expedio sends the email, whether or not the End User actually receive the email. The End User may provide any notice to Expedio under this EULA by sending a message to [email protected]. The End user is required to choose the option of receiving read receipts prior to sending the email to Expedio. Should this not be chosen, the email will be effective 3 (three) business days after the email is sent to Exepdio.
14.7. Marketing. The End User grants the Licensor a non-exclusive, royalty free and non- transferable license to use, reproduce the End User’s trademark, logo, service mark, copyright for Licensor’s marketing material including on its website, email campaigns, brochures etc.
14.8. Independent Contractors; Non-Exclusive Rights. Expedio and the End User are independent contractors, and this EULA shall not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
14.9. Consent by End User: The End User hereby grants express consent and acknowledges that Expedio will retain/ store the End User data and confidential information, of any nature (either wholly or partially), in the company’s servers or cloud or otherwise in any other medium as may be transmitted/ processed/ passed through the Software.
14.10. Survival. Notwithstanding anything contained in this EULA, Clause 5 (Indemnities), Clause 6 (Limitation on Liability), Clause 7 (Acknowledgement and Disclaimers), Clause 8 (Intellectual Property Rights), Clause 9 (Confidentiality), Clause 10 (Non-Compete and Non-solicitation), Clause 12 (Term and Termination) Clause 13 (Dispute Resolution and Governing Law) and Clause 14.6 (Notice) and Clause 14.7 (Marketing) and Clause 14.10 (Survival) shall survive the termination of this EULA.
14.11. e-Agreement: The End User hereby agrees and undertakes that the End User is legally entitled and eligible to enter into this EULA and further agrees and undertakes to be bound by and abide by this EULA and the person accepting this EULA by and on behalf of the entity is authorised representative of the entity and is entitled and is legally authorised to bind the entity on whose behalf this End User is being accepted.