END USER LICENCE AGREEMENT
mistEO, or any one of its subsidiaries or affiliated companies and also trading as Climate Decision Intelligence (collectively known as mistEO), and the End User (together, the Parties) agree, in consideration of, among other things, the mutual promises contained in this agreement, as follows:
1 Definitions and Interpretation
In this EULA (as defined below):
Accepted Use means the use of the mistEO Service and Platform by the End User to manage heat stress of livestock on the farms that are owned or controlled by the End User;
ADC means the Australian Disputes Centre;
ADC Guidelines means the ADC Mediation Guidelines in force from time to time which are incorporated into this EULA by reference;
Additional Amount has the meaning given to it in clause 5.4(b);
Breed Data means data relating to the livestock that is owned or controlled by the End User, which includes (but is not limited to), the age, weight, and type of livestock;
Business Day means:
(a) for determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
(b) for any other purpose, a day that is not a Saturday, Sunday or public holiday in Victoria, Australia;
Commencement Date means, in respect of an End User, the date on which the End User commences their subscription for the Services as per the process for onboarding set out by mistEO from time to time;
Confidential Information of a party means:
information of a confidential nature relating to or developed in connection with the business affairs of that party which is disclosed to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party;
(a) information designated by that party as confidential; or
(b) information regarding processes, policies, clients, customers, employees, contractors of or other persons doing business with that party,
but does not include information that:
(a) is or becomes generally available in the public domain, other than through any breach of confidence;
(b) is rightfully received by the other party from a third-party other than as a result of breach of confidence; or
(c) has been independently developed by the other party without using any other Confidential Information of the first party.
mistEO’s Confidential Information includes the terms of this EULA and the Third-Party Integrations. For the avoidance of doubt, information developed by mistEO for the End User under this EULA is mistEO’s Confidential Information and not that of the End User;
Consideration has the meaning given to it in clause 5.4(a);
Corporations Act means the Corporations Act 2001 (Cth);
EULA means this end user licence agreement which consists of the covering execution page and the following documents:
(a) the terms and conditions of this EULA (being, clause 1 to 18); and
(b) any Schedules to this EULA;
End User means a person or entity who subscribes to the Services as per the process for onboarding set out by mistEO from time to time;
End User Data means any information derived from the End User’s use of the Platform or Services;
Expiry Date means, in respect of an End User, being, in the absence of renewal in accordance with clause 2.2, 12 months after the Commencement Date;
Fees means the fees that the End User will pay to mistEO for the Services, as set out in Schedule 1, unless otherwise agreed in writing;
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
HLI Data means Heat Load Index data, which is derived by mistEO using the mistEO Software;
Infringement Claim means any dispute, claim, suit or action or proceeding (actual, threatened or potential) made by a third-party against the End User alleging that the whole or a party of any the Platform, the Services, the Support Services or their respective supply, licence or use as authorised by this EULA, infringes (or would infringe) another person’s Intellectual Property Rights or trade secrets, except to the extent that the infringement has been caused by the End User;
Initial Term means the initial term of this EULA as described in clause 2.1;
Insolvency Event means, for a person, being in liquidation or provision liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event;
Intellectual Property Rights means all present and future rights conferred by statute, common law, equity or any corresponding law in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:
(a) all rights in all applications to register these rights; and
(b) all renewals and extensions of these rights;
Internet means a global computer network consisting of interconnected networks using standardised communication protocols;
Losses means all losses, damages, liabilities, claims and expenses whatsoever (including reasonable legal costs and defence or settlement costs) and Loss has a corresponding meaning;
Material means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies and includes all releases, updates and amendments to the original Material made under this EULA;
mistEO means mistEO Pty Ltd (ACN 650 743 070);
mistEO Data means any content or data owned by or vesting in mistEO;
mistEO Software means any proprietary software owned or developed by mistEO;
mistEO Third-Party Data means data procured by mistEO from third parties including, but not limited to, Breed Data, HLI Data, RAP Data, Site Data and Weather Data and used within the Services or Platform;
Modification includes an alteration, enhancement, update, fix or development whether created or developed under this EULA or otherwise and Modify and Modified have corresponding meanings;
Notice has the meaning given to it in clause 18.1;
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not:
(a) about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
(b) about the affairs or personal particulars of a legal entity such as a company or a business,
which is received or learnt by the End User from any source as a consequence of or in performance of its rights and obligations under this EULA;
Platform means the proprietary software owned by mistEO that provides, among other things, heat load analytics to the End User through a cloud-based application and includes any Modifications made to the Platform;
Privacy Laws means:
(a) the Privacy Act 1988 (Cth);
(b) any legislation (to the extent that such legislation applies to mistEO or the End User or any other recipient of Personal Information) from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of personal data; and
(c) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time;
Recipient has the meaning given to it in clause 5.4(b);
Relevant Laws means all Commonwealth, Australian State or Territory and local legislation and any mandatory requirements, notices, orders or directions of an Authority which are relevant to:
(a) the Services;
(b) the Support Services;
(c) mistEO’s performance of its obligations under this EULA; and/or
(d) the End User’s use and enjoyment of the Services and/or the Support Services;
RAP Data means Risk Assessment Program Data;
Representative means, in respect of a party, any person acting for or on behalf of that party and includes any director, officer, employee, contractor, subcontractor or professional adviser of that party;
Site Data means data relating to the farm site that is owned or controlled by the End User, which includes (but is not limited to), soil quality, cultivation techniques, pest control and crop growth;
Services means the services supplied (or to be supplied) by mistEO to the End User under this EULA;
Support Services means support services in relation to the Platform as described in Schedule 2;
Term means the Initial Term and any further term;
Third-Party Data means any content or data created, related, or uploaded to the Platform, including information, notifications or alerts provided to the End User via the Platform or by Third-Party Service Providers, including without limitation, images, information, and location data;
Third-Party Integrations means any application or process connecting two or more applications, including via application programming interfaces, or other means of integration, provided by a Third-Party Service Provider;
Third-Party Service Provider means a service provider that may be engaged by mistEO to provide services to an End User via a Third-Party Integration or otherwise; and
Weather Data means public weather data (which is derived from publicly available sources such as the Bureau of Meteorology) and private weather data (which is derived from privately owned weather stations).
In this EULA the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this EULA;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(iii) a party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to that document;
(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this EULA;
(vi) this EULA includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(viii) an agreement other than this EULA includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
(ix) a monetary amount is in Australian dollars;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) in determining the time of day, where relevant to this EULA, the relevant time of day is:
(i) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(ii) for any other purpose under this EULA, the time of day in the place where the party required to perform an obligation is located;
(i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this EULA or any part of it; and
(j) a term or expression starting with a capital letter:
(i) which is defined in the Corporations Act, but is not otherwise defined in this EULA, has the meaning given to it in the Corporations Act; and
(ii) which is defined in the GST Law, but is not otherwise defined in this EULA or the Corporations Act, has the meaning given to it in the GST Law.
1.3 Non Business Days
If the day on or by which a person must do something under this EULA is not a Business Day:
(a) if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous Business Day.
1.4 Inconsistency and documents comprising this EULA
If there is an inconsistency between any one or more of the documents comprising this EULA, the document listed higher in the following list will prevail to the extent of the inconsistency:
(a) the terms and conditions of this EULA;
(b) the schedules to this EULA;
(c) any annexures or attachments to the schedules to this EULA; and
(d) any other document incorporated by reference into any of the above.
2.1 Initial Term
This EULA commences on the Commencement Date and, unless automatically renewed in accordance with clause 2.2 or terminated earlier in accordance with its terms, expires on the Expiry Date (Initial Term).
2.2 Automatic renewal
The term of this EULA will automatically renew for a period of 12 months from the end of each Term, unless the End User notifies mistEO in writing or via the available functionality on the Platform no later than 30 days prior to the end of the then-current term that the End User wishes to end this EULA at the end of the then-current term.
3.1 Supply of Services
mistEO will provide the Services to the End User during the Term in accordance with this EULA.
3.2 Assumptions and Dependencies
The End User understands and agrees that:
(a) the Services proposed to be supplied to the End User by mistEO under this EULA may be contingent upon certain assumptions being true and certain dependencies being fulfilled by the End User;
(b) mistEO reserves its right to cancel or terminate (in whole or in part) this EULA if any of the assumptions are not true or any of the dependencies are not met to mistEO’s reasonable satisfaction; and
(c) certain costs under this EULA are non-refundable and will need to be paid in full by the End User notwithstanding cancellation or termination of this EULA by mistEO under clause 3.2(b).
As consideration for, among other things, the Services, the End User will pay Fees in accordance with and as specified in Schedule 1.
5 Invoicing and payment
mistEO will invoice the End User in respect of the Fees as set out in Schedule 1 via a third-party payment gateway.
5.2 Incorrectly rendered invoice
The End User must make a payment under this EULA unless it receives an incorrectly rendered invoice. An invoice is incorrectly rendered if the End User can demonstrate with evidence that the payment amount specified is incorrect.
5.3 Payment terms
Subject to clause 5.2, the End User must pay mistEO any invoice issued by mistEO under this EULA within the timeframe specified in the Payment Terms set out in Schedule 1.
5.4 GST exclusive
(a) Any consideration or amount payable under this EULA, including any non-monetary consideration (as reduced in accordance with clause 5.4(e) if required) (Consideration) is exclusive of GST.
(b) If GST is or becomes payable on a Supply made under or in connection with this EULA, an additional amount (Additional Amount) is payable by the party providing consideration for the Supply (Recipient) equal to the amount of GST payable on that Supply as calculated by the party making the Supply (Supplier) in accordance with the GST Law.
(c) The Additional Amount payable under clause 5.4(b) is payable at the same time and in the same manner as the Consideration for the Supply, and the Supplier must provide the Recipient with a Tax Invoice immediately after the time of payment of the Additional Amount. The Additional Amount is only payable on receipt of a valid Tax Invoice.
(d) If for any reason (including, without limitation, the occurrence of an Adjustment Event) the amount of GST payable on a Supply (taking into account any decreasing or increasing Adjustments in relation to the Supply) varies from the Additional Amount payable by the Recipient under clause 5.4(b):
(i) the Supplier must provide a refund or credit to the Recipient, or the Recipient must pay a further amount to the Supplier, as appropriate;
(ii) the refund, credit or further amount (as the case may be) will be calculated by the Supplier in accordance with the GST Law; and
(iii) the Supplier must notify the Recipient of the refund, credit or further amount within 14 days after becoming aware of the variation to the amount of GST payable. Any refund or credit must accompany such notification, or the Recipient must pay any further amount within 7 days after receiving such notification, as appropriate. If there is an Adjustment Event in relation to the Supply, the requirement for the Supplier to notify the Recipient will be satisfied by the Supplier issuing to the Recipient an Adjustment Note within 14 days after becoming aware of the occurrence of the Adjustment Event.
(e) Despite any other provision in this EULA:
(i) if an amount payable under or in connection with this EULA (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Amount Incurred; and
(ii) no Additional Amount is payable under clause 5.4(b) in respect of a Supply to which s 84-5 of the GST Law applies.
(f) Any reference in this clause to an Input Tax Credit to which a party is entitled includes an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of a GST Group of which the party is a member is entitled.
6.1 Use of Platform
(a) As part of the Services, mistEO will provide the End User with access to, and use of, the Platform.
(b) Except as provided for in this EULA, the End User may not use the Platform for any reason other than the Accepted Use.
(a) mistEO does not and cannot control the flow of data to or from the Platform and other portions of the Internet.
(b) Such flow depends in large part on the performance of Internet services provided or controlled by third parties.
(c) At times, actions or inactions of such third parties can impair or disrupt the connection of the Platform to the Internet (or portions thereof).
(d) Although mistEO will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, mistEO cannot guarantee that such events will not occur.
(e) To the extent permitted by law, mistEO disclaims any and all liability resulting from or related to the events described in clauses 6.2(a) to 6.2(f) and disclaims any and all liability arising from any actions of any Third-Party Service Provider.
(f) mistEO will aim use commercially reasonable efforts to correct any error in the Platform which impairs (Error) or prevents the Platform from fully operating in the most optimal manner as soon as reasonably practicable following receipt of a written notice of the Error from the End User.
The parties acknowledge that the Platform is an existing proprietary product of mistEO and any Modifications connected to the Platform are future proprietary products (whether created by the End User or by mistEO), and:
(a) the licence arrangement contemplated by this EULA is non-exclusive; and
(b) mistEO is in no way constrained or restricted in its continued use, development, sale, licensing or commercial supply of the Platform (including any Modifications connected to these).
7.2 Licence to use the Platform
For the duration of the Term, mistEO grants the End User a non-transferable, non-exclusive, non-sub-licensable, royalty-free, worldwide licence to access and use the Platform for the sole purpose of accessing the Services in the ordinary course of utilising the Services provided by mistEO and in accordance with the Accepted Use.
7.3 Licence to use Third-Party Integrations
For the duration of the Term, mistEO grants the End User a non-transferable, non-exclusive, non-sub-licensable, royalty-free, worldwide licence to use, display, copy, modify, adapt and publish the outputs sent to the End User by a Third-Party Service Provider via their Third-Party Integrations in the ordinary course of utilising the Services provided by mistEO and in accordance with the Accepted Use.
7.4 Licence to use End User Data
For the duration of the Term, the End User grants mistEO a transferable, non-exclusive, sub-licensable, royalty-free, worldwide, perpetual licence to use, display, copy, modify, adapt and publish the End User Data in the ordinary course of providing the Services to the End User and to improve, update, modify or upgrade the Platform or any other offering or services provided by mistEO.
The End User grants mistEO a revocable, non-exclusive, non-sub-licensable, limited licence to use the End User’s name and logo solely for the purposes of informing mistEO’s clients and prospective clients that the End User uses the mistEO platform and services.
8 Support Services
8.1 Support Services
mistEO must provide the End User with all reasonable assistance relating to the Support Services set out in Schedule 2.
8.2 General obligation
In providing the Support Services, mistEO must:
(a) act at all times with due care, skill, competence, diligence and judgment;
(b) act at all times in a highly professional and ethical manner;
(c) not perform the Support Services in a manner which causes the End User to breach any Relevant Laws; and
(d) possess all relevant authorisations, permits and licences required by law to perform the Support Services.
9 Representations and warranties
9.1 Mutual warranties
Each party represents and warrants to the other party that:
(a) it has full power and authority to enter, perform and observe its obligations under this EULA, and that its execution, delivery and performance of this EULA has been duly and validly authorised by all necessary corporation action;
(b) this EULA does not contravene its constitution or other constituent documents or any law, regulation, ruling, consent, judgement, order or official directive or any of its obligations or undertakings by which it or any of its assets are bound or cause a limitation on its powers or those of its directors to be exceeded;
(c) its obligations under this EULA are valid, binding, and enforceable;
(d) it has not granted to any other person rights inconsistent with the rights granted under this EULA; and
(e) no litigation, arbitration, mediation, conciliation, or administrative proceedings are taking place, pending or threatened which, if adversely decided, could have a material adverse effect on its ability to perform its obligations under this EULA.
9.2 All other warranties are excluded
(a) Except as otherwise expressly provided in this EULA, the Services are provided to the End User on an ‘as is, as available’ basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for particular purpose, title, non-infringement, security, availability, accuracy or otherwise.
(b) To the maximum extent permitted by law, mistEO expressly disclaims all warranties, including:
(i) that the Services will meet the End User’s requirements or be fit for any particular purpose;
(ii) that the Services will be error-free correct, accurate, complete, reliable, current, up-to-date, or otherwise;
(iii) the Platform will be error free or function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure or otherwise compatible with the End User’s computer equipment, systems, environment, hardware, or software; and
(iv) that the statistical methods on which any of the Services are based use appropriate, reasonable, or accurate assumptions, are fit for the End User’s particular purpose or are otherwise suitable for the End User’s use.
9.3 Reliance on representations and warranties
(a) Each party acknowledges that the other party has executed this EULA and agreed to take part in the transactions under this EULA in reliance on the representations and warranties that are made in it, including in this clause 9.
(b) All representations and warranties given in this EULA are made on the date of this EULA and on a continuing basis. The End User must disclose to mistEO any information which it becomes aware of during the Term of this EULA which may cause a breach of a warranty given by the End User under this clause 9.
10 Intellectual Property Rights
10.1 Ownership of Intellectual Property by mistEO
Both parties agree that mistEO exclusively owns all Intellectual Property Rights in:
(a) the Platform;
(b) the systems and background technology used to provide the Platform; and
(c) any Modifications in respect of the Intellectual Property Rights referred to in clauses 10.1(a) to 10.1(b) inclusive.
10.2 Ownership of Intellectual Property in mistEO Third-Party Data
Both parties agree that the Intellectual Property Rights in mistEO Third-Party Data are owned as follows:
|Type of Data||Owner|
|Breed Data||End User|
|RAP Data||End User|
|Site Data||End User|
|Weather Data||Public weather data: third-party publisher
Private weather data: weather station owner
10.3 End User warranties
(a) The End User warrants and represents that, in the course of accessing or using the Services, the Platform, or otherwise, it will not:
(i) infringe any third-party Intellectual Property Rights;
(ii) use the Platform for any illegal or criminal purpose or activity or for any purpose other than the Accepted Use;
(iii) other than as permitted by mistEO, modify, translate, make derivative works from, disassemble, reverse compile or reverse engineer any part of the Platform in order to build a product that is similar or substantially the same as the Platform or provides substantially the same functionality or Services; or
(iv) remove, deface or destroy any copyright or other rights notices used on, or in connection with the Platform and the End User acknowledges that any attempt to do so is a violation of the rights of mistEO.
(b) The End User warrants and represents that:
(i) it has full power, capacity and authority to enter into this EULA and perform all of its obligations under this EULA;
(ii) its use of the Platform or the Services has not been previously suspended by mistEO;
(iii) it is not a direct competitor of mistEO or any of mistEO’s products or services; and
(iv) it will not, in any way or at any time, challenge or dispute mistEO’s rights, title or interest in the Platform or any Third-Party Integrations, or any Intellectual Property Rights connected to, or in, those assets.
(c) Any publication or use of any End User Data, and any Third-Party Integrations, is at the End User’s sole risk and the End User agrees that:
(i) the End User’s use of End User Data and Third-Party Integrations on third-party sites (Third-Party Site) is at the End User’s sole risk and is the End User’s responsibility;
(iii) mistEO does not endorse or warrant the accuracy of any such Third-Party Sites and will in no way be liable or responsible for any Third-Party Site, including advertising, products or materials on or available from them; and
(iv) mistEO disclaims all liability in any way for any loss or damages the End User (or its related bodies corporate, directors, officers, employees, agents, and customers) incur or allege to have incurred, either directly or indirectly, as a result of the End User’s use and/or reliance upon any such Third-Party Site, or the End User’s processing or use of End User Data, Third-Party Integrations or Personal Information whether provided to a Third-Party Site or otherwise.
(d) It is the End User’s responsibility to monitor the usage of End User Data and Third-Party Integrations, including the unauthorised or offensive use of End User Data or Third-Party Integrations by any Third-Party Site or Third-Party User.
(e) mistEO assumes no responsibility for identifying or requiring the removal of End User Data or Third-Party Integrations from any Third-Party Sites (such as social networking sites) where End User Data or Third-Party Integrations has been published or used.
10.4 Notification of potential Infringement Claims
Each party must promptly notify the other if it becomes aware of any potential infringement of any Intellectual Property Rights or obligations of confidence relating to the Platform or any Third-Party Integrations.
11.1 Confidentiality obligations
Each party must:
(a) take all action reasonably necessary to maintain the confidentiality of the other party’s Confidential Information;
(b) not disclose the other party’s Confidential Information to any person except as permitted under this clause;
(c) only use or reproduce the other party’s Confidential Information for the purposes of performing its obligations or exercising its rights under this EULA;
(d) not make, assist or permit any person to make any unauthorised use, disclosure or reproduction of the Confidential Information of the other party;
(e) take all steps reasonably necessary to secure each other’s Confidential Information against theft, loss or unauthorised disclosure;
(f) take reasonable steps to ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, reproduce or disclose that Confidential Information other than in accordance with this EULA;
(g) take reasonable steps to enforce the confidentiality obligations imposed or required to be imposed by this EULA including diligently prosecuting at its cost any breach or threatened breach of such confidentiality obligations by a person to whom it has disclosed Confidential Information of the other party; and
(h) on request by the other party provide and update promptly a list of all its Representatives to whom Confidential Information of the other party has been disclosed.
11.2 Permitted disclosures
Each party may disclose the other party’s Confidential Information:
(a) to its Representatives on a need to know basis for the purposes of this EULA provided that those Representatives are fully aware of the confidential nature of the Confidential Information before the disclosure is made;
(b) as required or authorised by law or the listing rules of any relevant stock exchange; or
(c) with the other party’s consent.
11.3 Return of Confidential Information
Each party must return the other party’s Confidential Information on request or otherwise when such Materials are no longer required for the purpose of this EULA. Return of the documents and other Materials referred to in this clause does not release any party from its confidentiality obligations.
11.4 Injunctive relief
Each party acknowledges that a breach of this clause 11 may cause irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, a party may seek injunctive relief against such a breach or threatened breach.
12 mistEO Data
12.1 Materials provided to End User
Any Materials that mistEO provide to the End User (including mistEO Data) is and will remain the property of mistEO.
12.2 Restrictions on End User use of mistEO Data
(a) The End User must:
(i) only process mistEO Data as part of the Services and in accordance with mistEO’s instructions from time to time;
(ii) not access, modify or delete mistEO Data at any time for any reason, or otherwise use, publish or copy mistEO Data for any purpose, other than as:
(A) expressly permitted by this EULA or mistEO in writing; or
(B) required by law, by a court or any regulatory authority, provided that (unless otherwise prohibited) prior to doing so the End User must promptly notify mistEO in writing to allow mistEO to take all reasonable steps to resist such requirement;
(iii) not purport to sell, let for hire, assert a lien over, assign rights in or otherwise dispose of any mistEO Data; and
(iv) not commercially exploit any mistEO Data (other than as contemplated by, and for the limited uses referred to in, this agreement);
(b) Notwithstanding any other term of this EULA (including where there is a dispute between the parties) upon mistEO’s request including following the expiry or termination of this EULA for any reason, the End User must:
(i) immediately upon request by mistEO, provide mistEO or its nominee with access to, and copies of, the mistEO Data, and the End User must not assert, seek to enforce or enforce any right of the End User not to comply with this clause 12.2(b)(i) (whether by way of refusal, demand, injunction, assertion of a lien or otherwise), and irrevocably and unconditionally waive any right the End User may otherwise have to do so;
(ii) promptly return all of the mistEO Data in a form reasonably requested by mistEO; and/or
(iii) if requested by mistEO:
(A) securely destroy the mistEO Data; and
(B) promptly certify to mistEO, in a form acceptable to mistEO, that the End User has done so.
13.1 Australian Privacy obligations
(a) If either party collects, uses, discloses, transfers or otherwise handles any Personal Information, it must comply with the Privacy Laws.
(b) Without limiting clause 13.1(a), each party must:
(i) notify the other party immediately if it becomes aware of any actual or potential misuse, interference, loss or unauthorised access, modification or disclosure of Personal Information, or if it becomes aware of a breach of this clause 13; and
(ii) notify the other party as soon as reasonably practicable after it becomes aware that a disclosure of any Personal Information may be required by law and, if reasonably requested by the other party, prior to any such disclosure.
13.2 Survival of obligations of confidentiality and privacy
The obligations of confidentiality and privacy imposed by this EULA survive the expiration or termination of this EULA.
The End User must establish and maintain appropriate, reasonably technical and organisational measures in accordance with sound industry practice and to the reasonable satisfaction of mistEO to secure the Platform.
15 Indemnity and liability
15.1 Scope of Indemnity
Subject to clauses 15.2 and 15.3, the End User releases and indemnifies mistEO against all Losses suffered or incurred by the End User in connection with:
(a) any Infringement Claim caused or contributed to by the End User;
(b) any breach by the End User of this EULA; and
(c) any negligent or wrongful act or omission of the End User.
15.2 Process for Infringement Claims
In the event of an Infringement Claim, the End User will:
(a) give mistEO prompt written notice of the Infringement Claim;
(b) allow mistEO control of the defence and related settlement negotiations (provided that mistEO must not settle any Infringement Claim in a manner that will adversely affect the End User); and
(c) provide to mistEO all reasonable assistance, at the End User’s expense.
The End User must take all reasonable steps to avoid or mitigate any Loss or liability which it might suffer or incur in relation to this EULA (including under an indemnity).
15.4 Limitation of Liability
To the fullest extent permitted by law, the maximum cumulative liability of mistEO for Loss arising out of or in connection with this EULA (whether under statute, in contract or otherwise) is limited to the Fees paid by the End User under this EULA, except to the extent that such Loss arises directly from fraud.
15.5 Consequential loss
Subject to the provisions set out in clause 15.4, mistEO will not be liable to the End User under this EULA for any special, indirect, or consequential loss or damage including, without limitation, loss of revenue or profits, loss of reputation, loss of goodwill, loss of business opportunity, loss of contract and loss of data.
15.6 Survival of indemnities
The indemnities contained in this EULA continue notwithstanding the expiry or termination of this EULA.
16.1 Termination for convenience
mistEO may terminate this EULA for convenience by providing the End User with 30 days written notice.
16.2 Termination for cause
Either party may terminate this EULA by written notice to the other party if the other party commits a material breach of this EULA which is:
(a) incapable of being remedied; or
(b) capable of being remedied, but the other party fails to remedy the breach within 20 Business Days after receiving notice from the other party to do so.
16.3 Other termination rights
(a) mistEO may terminate this EULA immediately if:
(i) the End User uses the Services for a purpose other than the Accepted Use;
(ii) an Insolvency Event occurs in relation to the End User; or
(iii) the End User takes any step toward, or suffers or experiences any step in relation to, an Insolvency Event.
(b) mistEO may terminate this EULA as provided under clause 3.2.
16.4 Consequences of termination
If this EULA is terminated or expires, without limiting any right or remedy mistEO may have under this EULA or at law:
(a) each licence granted by mistEO under this EULA terminates immediately without the need for anything else to be done and all Intellectual Property Rights granted under such licences revert from the End User back to mistEO (except to the extent provided for under clause 10.2); and
(b) the End User must promptly:
(i) stop using the Platform; and
(ii) at its own cost destroy or deliver to mistEO (at mistEO’s election) all, to the extent applicable and practicable, copies of the Material and once delivered to mistEO, uninstall and destroy any copies of the Platform electronically stored by the End User.
The expiry or termination of this EULA does not affect:
(a) any claim that a party may have against the other party;
(b) either party’s rights in respect of any breach of this EULA occurring before expiry or termination; or
(c) the obligations of the parties to make a payment or perform any other act under this EULA which was due before expiry or termination.
17.1 Dispute Notice
If a dispute arises between the End User and mistEO in relation to this EULA, either of the parties may by notice to the other party specifying reasonable details of the dispute (Dispute Notice), refer the dispute for resolution in accordance with this clause 17.
17.2 Good faith discussions
(a) If a Dispute Notice is given, the parties must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.
(b) If the parties are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), either party may escalate the dispute by notice to the other party (Escalation Notice).
(c) If an Escalation Notice is given, a Representative of each party must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.
(d) If the parties are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), the parties may by agreement refer the dispute to mediation in accordance with clause 17.3 or if the parties do not agree to refer the dispute to mediation, either party may commence legal proceedings.
(a) The mediation must be conducted in private in accordance with the ADC Guidelines and the provisions of this clause 17.3. In the event of any inconsistency between them, clause 17.3 will prevail.
(b) Each party must notify the other no later than 48 hours prior to mediation of the names of their representatives who will attend the mediation. No party may refuse the other’s chosen representatives or limit the other’s representatives attending during the mediation.
(c) The terms of any mediation settlement agreement and any information relating to the existence, conduct, status or outcomes of the mediation is Confidential Information of each party and may be published or announced only with the consent of all relevant parties and in terms agreed by those parties.
(d) Each party will bear its own costs of the mediation including the costs of any representatives, and each will bear half the costs of the mediator.
17.4 No legal proceedings
Neither mistEO nor the End User may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute unless the dispute resolution procedures set out in this clause 17 have been followed.
17.5 Continuation of agreement
Notwithstanding the existence of a dispute, the parties must continue to perform their obligations under this EULA.
Any notice, demand, consent or other communication (a Notice) given or made under this EULA:
(a) must be in writing and signed by a person duly authorised by the sender;
(b) must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand, or by email to the address below or the address last notified by the intended recipient to the sender;
© must be sent to the addresses or e-mail for notices specified in Schedule 2, or as otherwise agreed in writing; and
(d) will be taken to be duly given or made:
(i) in the case of delivery in person, when delivered; and
(ii) in the case of delivery by post, seven business days after the date of posting (if posted to an address in the same country) or seven business days after the date of posting (if posted to an address in another country), but if the result is that a Notice would be taken to be given or made on a day that is not a business day in the place to which the Notice is sent or is later than 4.00pm (local time) it will be taken to have been duly given or made at the commencement of business on the next business day in that place.
18.2 Governing Law and Jurisdiction
This EULA is governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this EULA and waives any right to object to such venues on any ground.
18.3 Operation of indemnities
(a) Each indemnity in this EULA survives the expiry or termination of this EULA.
(b) A party may recover a payment under an indemnity in this EULA before it makes the payment in respect of which the indemnity is given.
(c) If a provision of this EULA is expressed to:
(ii) exclude or limit any liability of; or
(iii) otherwise benefit,
a person who is not a party to this EULA, the End User agrees that mistEO holds the benefit of that indemnity, exclusion, limitation or other benefit on trust for that person and may enforce this EULA on their behalf and for their benefit.
(a) A word or provision must be read down if:
(i) this EULA is void, voidable, or unenforceable if it is not read down;
(ii) this EULA will not be void, voidable or unenforceable if it is read down; and
(iii) the provision is capable of being read down.
(b) A word or provision must be severed if:
(i)despite the operation of clause 18.4(a), the provision is void, voidable or unenforceable if it is not severed; and
(ii) this EULA will be void, voidable or unenforceable if it is not severed.
(c) The remainder of this EULA has full effect even if clause 18.4(a) or 18.4(b) applies.
18.5 Cumulative Rights
The rights and remedies in this EULA are in addition to other rights and remedies given by Law independently of this EULA.
18.6 Entire Agreement
This EULA contains the entire agreement between the parties as at the date of this EULA with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
18.7 GST on claims
(a) If a party provides a payment for or any satisfaction of a claim or a right to claim under or in connection with this document (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for indemnity or for reimbursement of any expense) that gives rise to a liability for GST, that party must pay, and indemnify the claimant against the amount of that GST.
(b) If a party has a claim under or in connection with this document for a cost on which that party must pay an amount for GST, the claim is for the cost plus the amount for GST (except any amount for GST for which that party is entitled to an Input Tax Credit).
(c) If a party has a claim under or in connection with this document whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
18.8 Clauses which survive expiry or termination
Clauses 6.1, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 survive the expiry or termination of this EULA, together with any other clause which by its nature is intended to do so.
18.9 No Waiver
No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
18.10 Electronic execution
The parties to this EULA give all necessary consents, including under the Corporations Act and the Electronic Transactions (Victoria) Act 2000 (Vic), or any equivalent legislation of any jurisdiction, for:
(a) the execution or exchange of this document;
(b) the delivery of any notice under it; and
(c) any requirement for anything under it to be done in writing,
to be done or satisfied by electronic means.
This EULA may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument. Delivery of an executed counterpart of a signature page of this EULA by PDF file (portable document format file) will be effective as delivery of a manually executed counterpart of this EULA.
18.12 Relationship between parties
(a) Nothing in this EULA:
(i) constitutes a partnership between the parties; or
(ii) except as expressly provided, makes a party an agent of another party for any purpose.
(b) A party cannot in any way or for any purpose:
(i) bind another party; or
(ii) contract in the name of another party.
(c) If a party must fulfil an obligation and that party is dependent on another party, then that other party must do each thing reasonably within its power to assist the other in the performance of that obligation.
(a) mistEO may assign, transfer or otherwise deal with its rights under this EULA and agrees to provide notice to the End User of any assignment or transfer.
(b) The End User may not assign, transfer or in any other manner deal with its rights under this EULA.
An amendment or variation of this EULA may be made by mistEO from time to time.
18.15 Further assurances
Each party must promptly execute all documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in this EULA.
Schedule 1 – Fees
For the provision of Services under this EULA, the End User agrees to be bound by the following fee schedule:
|Fee||Lite: $999.00 (exclusive of GST)
Lite: $2499.00 (exclusive of GST)
Lite: $3499.00 (exclusive of GST)
|Frequency||Once every 12 months|
|Payment Terms||Fee is to be paid within 7 days|
|Payable to||mistEO Pty Ltd ACN 650 743 070|
Upon termination of this EULA by either party (except under clauses 16.2 or 16.3(a)), any fees paid by the End User to mistEO are non-refundable and the End User will continue to have access to the Services and the Platform up and until the Expiry Date.
This Schedule remains subject to change by mistEO, and any price changes will not apply retrospectively.
Schedule 2 – mistEO Support Services
mistEO will provide the following Support Services in respect of the Platform:
(a) diagnose and resolve defects, errors or incidents which occur in respect of the Platform; and
(b) ensure the Platform is kept up to date and operational.
1 mistEO Support Services
1.1 Provision of mistEO Support Services
During the Term, mistEO will use commercially reasonable efforts to provide the Support Services to the End User in accordance with this Schedule 2.
1.2 Support Services during Business Hours
(a) The Support Services will be provided between 9:00 a.m. and 5:00 p.m. Australian Eastern Standard Time (Business Hours) on Business Days.
(b) The Support Services will be facilitated through an online management system when the End User submits a support request to mistEO through either of the following:
(c) mistEO will endeavour to provide timely service, but this is not guaranteed and will be subject to, and dependent upon, various factors such as internal resourcing, reasons for downtime or system errors, and availability of technical personnel.