WYTEBOARD SAAS LICENCE/SERVICE TERMS & CONDITIONS
You have been brought to this section of the Wyteboard website because you selected the option to take up a limited, one month, no charge, trial licence of the Wyteboard software as a service (“Wyteboard SaaS”) offering. The Wyteboard SaaS includes access to the Wyteboard software (the “Software”) via cloud facilities supporting the Software, together with the related services supporting the Software and data management (“Services”) provided by Wyteboard.
If you wish to proceed with the free one month trial you must complete the information required below and once you have provided the required information, you must click on the “Accept” button when it is presented to you. By selecting “Accept” you agree to be bound by the Wyteboard terms and conditions of supply and use of the Wyteboard SaaS (the “Wyteboard Terms”), which are set out on this page. If you do not wish to accept the Wyteboard Terms and take up the free trial you will be given the option to say no, and you will be returned to the (Wyteboard home page).
You have been brought to this section of the Wyteboard website because you selected the option to take up a limited, month by month, fee-based licence of the Wyteboard software as a service (“Wyteboard SaaS”) offering. The Wyteboard SaaS includes access to the Wyteboard software (the “Software”) via cloud facilities supporting the Software, together with the related services supporting the Software and data management (“Services”) provided by Wyteboard.
You may have selected this option without having first used the free one month trial licence, or you may be upgrading from a free one month trial licence. In either circumstance, if you wish to proceed you must complete and/or confirm the information required below and once you have provided the required information, you must click on the “Accept” button when it is presented to you. By selecting “Accept” you agree to be bound by the Wyteboard terms and conditions of supply and use of the Wyteboard SaaS (the “Wyteboard Terms”), which are set out on this page. If you do not wish to accept the Wyteboard Terms and take up the fee-based licence you will be given the option to say no, and you will be returned to the Wyteboard home page.
Terms & Conditions of Use and Access to the Wyteboard SaaS
This Agreement is between you, the User, and Wyteboard Pty Limited (“Wyteboard”).
By selecting “Accept” in the prompts when providing your details on our website, you have agreed to take up either a free trial licence, or a fee-based licence, to use and access the Wyteboard Saas, Software and Services, strictly in accordance with the following terms and conditions.
1 Limited Rights of User – Free Trial
1.1 As from the date upon which the User selects “Accept” in respect of these terms, and subject to any decision by Wyteboard, in its absolute discretion, to not grant the User a free one month subscription to the Wyteboard SaaS, and access to the Software and Services, the User will have access to and use of the Wyteboard SaaS, the Software, and such of the Services as Wyteboard may provide, for a period of one calendar month.
1.2 The User acknowledges:
(a) The licence granted under clause 1.1 is only valid for the month immediately following the User accepting these terms as per clause 1.1, but that such licence may be revoked by Wyteboard at any time for any reason.
(b) The User has no right or option to extend that licence and that upon expiry of the licence all access to the Wyteboard SaaS, the Software and the Services will immediately cease.
(c) The only way to secure further access to the Wyteboard SaaS, Software and Services, is for the User to request a paid subscription licence from Wyteboard which must be done through the Wyteboard website.
(d) Notwithstanding any reference to Fees in these terms and conditions, all obligations of the User as set out in these terms and conditions also bind the User where only a free trial licence is taken up by the User, and Wyteboard may exercise all rights and entitlements of Wyteboard under these terms where only a free trial licence is taken up by the User.
(e) Where only a free trial licence is taken up by the User, no rights and/or entitlements are granted to the User other than the limited right to use the SaaS and Software in accordance with these terms and conditions, and no obligations are imposed on or bind Wyteboard other than to facilitate the limited licence access of the User to the Wyteboard SaaS and the Software.
1.3 The Wyteboard SaaS and the Software, and each of them, and the benefit of the Services, may only be used for the User’s internal purposes, and may not be sub-licensed or otherwise provided by the User to any third parties.
2 Limited Rights of User – Paid Subscriber
2.1 As from the date the User pays the required commencement Fees and accepts these terms, the User is granted a limited, non-exclusive, revocable licence to access and use the Wyteboard SaaS and the Software, and be provided with the Services, subject to these terms and conditions, and in particular subject to payment of all Fees as and when they are due.
2.2 The User acknowledges:
(a) The licence granted under clause 2.1 is a month to month licence, and is only valid for the month for which Fees have been paid. The User further acknowledges it has no right or option to extend the Limited Licence and that any extension or on-going grant of rights is totally within the discretion of Wyteboard and subject to payment in full of all applicable Fees.
(b) The Wyteboard SaaS and the Software, and each of them, and the benefit of the Services, may only be used for the User’s internal purposes, and may not be sub-licensed or otherwise provided by the User to any third parties.
3 Obligations of Wyteboard
3.1 Subject to compliance by the User with these terms and conditions, and in particular payment by the User of all Fees as and when they fall due, Wyteboard will provide the User with:
(a) Access to the Wyteboard SaaS;
(b) Access to the Software through the Wyteboard SaaS;
(c) The Services.
3.2 The User acknowledges that Wyteboard makes no representations and/or warranties other than those expressly set out in these terms, or expressly stated on the Website.
3.3 Whilst Wyteboard will carry out regular backups of all data held in the Wyetbaord SaaS data repositories, it makes no warranty that such backups will be done nor that any such backups may be relied upon to replace any User Data that may be lost and/or inaccessible, and Wyteboard will not be liable or responsible for any loss and/or damage arising from or out of loss and/or corruption of User Data.
4 Obligations of User
4.1 The User acknowledges it must:
(a) Secure and operate all its own hardware necessary to access the Wyteboard SaaS and the Software and to receive the Services;
(b) Establish and maintain its own internet and related connections to be able to access the Wyteboard SaaS;
(c) Comply with such technical and other directions Wyteboard may give it concerning access to and/or use of the Wyteboard SaaS, the Software and/or the Services; and
(d) Carry out its own backup processes and systems for and in respect of the User Data.
5.1 Where the User is resident in or located in Australia, Wytebaord will issue tax invoices to the User for each payment of the Fees to be paid pursuant to Schedule 1. Regardless of whether the User is resident in or located in Australia, the User will pay the Fees to the Contractor at the times and in the amounts provided for in Schedule 1.
5.2 Tax invoices will comply with the A New Tax System (Goods and Services Tax) Act 1999 (“Act”).
5.3 Unless otherwise stated, the Fees exclude GST.
5.4 Wyteboard may increase the Fees at any time and will advise the User of such increases. Any such increase will apply from the month next following the date on which Wyteboard sends the communication to the User advising of the Fees increase. The User will be given an opportunity to decline to continue its access to the Wyteboard Saas, Software and Services under the new Fees, and on so advising Wyteboard by email or other written communication, the User’s right of access to and use of the Wyteboard SaaS, the Software and the Services will cease as from the end of the month in which such notice is given by the User, and the provisions of clauses 12.2 and 12.3 will apply.
6 No Warranty
6.1 Wyteboard does not warrant that access to and/or use of the Wyteboard SaaS, Software and/or Services, will be uninterrupted, nor that it will be error free.
6.2 Wyteboard makes no representation concerning the Wyteboard SaaS, Software and/or Services, and in particular makes no warranty that they will meet the User’s requirements and/or be suitable for any particular purpose.
7 Rights In Wyteboard SaaS Software & User Data
7.1 The User hereby acknowledges and agrees all Rights in and to the Wyteboard SaaS, the Software, and the output of the Services, and each of them, and any future updates, extensions and/or adaptations to any of them, are owned by Wyteboard, and that by using the Wytebaord SaaS, the Software and/or receiving the Services, the User does not acquire any Rights in or to the Wyteboard SaaS and/or the Software and/or the output of the Services either now or in the future.
7.2 Wyteboard acknowledges and agrees all Rights in and to the User Data, are at all times owned by the User, and that Wytebaord does not acquire any Rights in or to the User Data.
7.3 Notwithstanding clause 7.2, the User does not have any right or entitlement to extract User Data from the Wyteboard SaaS and/or Software other than through the normal use of the Wyteboard Saas. On expiry or termination of the User’s rights to access the Wyteboard SaaS and/or right of use of the Software, Wyteboard will reasonably co-operate with the User to provide the User with User Data in such form as can be readily and reasonably extracted from the Software and/or the Wyteboard SaaS.
8 Status of User
8.1 The User acknowledges it is an independent person or entity and is not an employee, partner, affiliate or agent of Wyteboard, and does not have the power or authority, directly or indirectly or through its servants or agents, to bind Wyteboard in any way, including to any agreement with a third party or otherwise to contract, negotiate or enter into a binding relationship for or on behalf of Wyteboard.
9 Confidentiality & Security
9.1 The User agrees that Confidential Information of Wyteboard will be treated as strictly confidential and shall not be used, disclosed or otherwise dealt with in any way, by the User or its personnel, without the prior written consent of Wyteboard.
10 Indemnity & Liability
10.1 The User hereby indemnifies Wyteboard and will keep it indemnified against all and any loss Wyteboard may suffer arising from or out of any one or more of the following:
(a) Any false or incorrect information the User may provide to Wyteboard;
(b) Any improper or unauthorised use of the Wyteboard SaaS and/or the Software; and
(c) Any use of third party software and/or hardware with or in conjunction with access to and/or use of the SaaS and/or Software, not authorised by Wyteboard.
10.2 Subject to sub-clauses 10.3, 10.4 and 10.5, Wyteboard hereby indemnifies the User and will keep it indemnified against all and any loss the User may suffer arising from or out of any actual breach by the Wyteboard SaaS and/or the Software of any third party Intellectual Property.
10.3 The indemnity given to the User is subject to the User:
(a) Promptly informing Wyteboard in writing of any such claim;
(b) Wyteboard having custody and control of handling and/or defending any such claim; and
(c) Not making any admission of liability or otherwise and co-operating with and assisting Wyteboard with the claim.
10.4 Wyteboard will not be required to fulfil the indemnity under clause 10.2 where a claim has arisen due to the use by the User of any hardware and/or software not approved by Wyteboard, or compatible with, the Wyteboard SaaS, Software and/or Services, or is a result of data and other Intellectual Proeprty used by and/or introduced by, the User.
10.5 Notwithstanding any other clause in this Agreement:
(a) Neither party will be liable to the other for any consequential and/or indirect loss of any kind.
(b) The total liability Wyteboard will have to the User under this Agreement, and any cause, loss and/or liability under or in relation to this Agreement and the supply of the Wyteboard SaaS, the Software and/or the Services, is limited to the amount of Fees paid by the User to Wyteboard pursuant to this Agreement.
11.1 In the event of a dispute arising during the Term of this Agreement, the parties agree, to the best of their endeavours, to adopt a policy of alternative dispute resolution through mediation or arbitration meetings between nominated groups or individuals, and by an escalation process through responsible and empowered representatives of the parties.
11.2 Should the above process of mediation and escalation fail to reach a resolution, then the parties agree to utilise alternate dispute resolution utilising the Institute of Arbitrators and Mediators.
12 Assignment & Sub-Contracting
12.1 The benefit of this Agreement may not be dealt with in any way by the User (whether by assignment or otherwise) without the prior written consent of Wyteboard.
12.2 Without limiting the generality of clause 11.1, the User may not authorise and/or empower any other person or entity to access and/or use the Wyteboard SaaS and/or Software, including providing any access codes and/or identity.
12.3 The User may not sub-contract or otherwise arrange for another person to perform any of its obligations under this Agreement without the prior written consent of Wyteboard.
13.1 Without prejudice to any other rights under this Agreement or at law,
Wyteboard may terminate this Agreement immediately by notice to the User if:
(a) The User commits a material breach of this Agreement and, if the breach is capable of remedy, fails to remedy that breach within 7 days of receiving written notice. For the purposes of this Agreement, “material breach” includes failure to pay Fees by the due payment date; or
(b) If a petition is presented or an application is filed for the winding up of the User or if the User enters into liquidation whether compulsory or voluntarily (other than for the purposes of a solvent amalgamation or reconstruction) or compounds with its creditors or has an administrator, receiver or receiver and manager appointed over all or any part of its assets or a mortgagee enters into possession of, the whole or any part of its assets or undertaking or it takes or suffers any similar action in consequence of debt.
13.2 Upon termination of this Agreement:
(a) Wyteboard will be entitled to immediately terminate all and any access the User may have to the Wyteboard SaaS and the Software, and immediately cease providing the Services;
(b) The User shall immediately pay all Fees owing up to the date of termination; and
(c) The User must return or destroy any Confidential Information of Wyteboard and all notes and memoranda (including copies of them) containing Wyteboard Confidential Information.
13.3 Termination of this Agreement shall not affect any cause of action which any party has or may have against another in respect of any matter pertaining to this Agreement which arose or arises independently of the grounds upon which this Agreement was terminated.
14 General Conditions
14.1 This Agreement shall be construed and governed by the laws of the State of NSW in Australia and by the Courts of that State.
14.2 This Agreement may only be amended or supplemented in writing and signed by authorised representatives of Wyteboard and the User.
14.3 Each indemnity in this Agreement is separate and independent of the other obligations of the parties and shall survive expiry, termination or frustration of this Agreement for any reason whatsoever.
14.4 This Agreement constitutes the entire agreement and understanding between the parties for and in respect of the subject matter of this Agreement, subject to the provisions of this Agreement to the contrary.
14.5 No right under this Agreement shall be deemed to be waived except by notice in writing signed by authorised representatives of the party alleged to be waiving the right.
14.6 Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
15.1 In this Agreement, unless the contrary intention appears:
(a) “Commencement Date” means the date of this Agreement.
(b) “Confidential Information” means:
(1) Information relating to the business, sales, marketing, financial data or technical operations of a party;
(2) Information relating to a party’s products, technology and/or know-how;
(3) Information received from third parties which either party is obliged to treat as confidential;
(4) Any other information classifiable at law as confidential information; and
(5) All forms of storage or representation of the information referred to herein but not limited to the following: loose notes, diaries, memoranda, drawings, photographs, electronic storage and computer printouts;
(6) Provided however that Confidential Information shall not include information which either party can establish conclusively:
(A) Entered the public domain without a breach of any obligation owed by that party to the other;
(B) Became known to that party prior to the other party’s disclosure of such information to that party;
(C) Became known to that party from a source other than the other party, except by way of a breach of any obligation of confidentiality owed to the other party; or
(D) Is independently developed by that other party.
(c) “Fees” means the fees to be paid to Wyteboard as set out on the pricing page, which are inclusive of GST.
(d) “Force Majeure” means an act, omission or circumstance relied on by one of the parties to this Agreement as a force majeure event and over which that party could not reasonably have exercised control.
(e) “Intellectual Property” means all intellectual and industrial property whether registrable or not, including, without limitation:
(1) Patents, trade marks, service marks, copyright, registered designs, trade names, symbols and logos;
(2) Patent applications and applications to register trade marks, service marks and designs; and
(3) All formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, costings, brochures, and other information used by that party in the course of its business.
(f) “Rights” means any and all worldwide proprietary and intellectual property rights, whether registered, registrable or unregistered, including rights in respect of or in connection with:
(1) Any Confidential Information;
(2) Any copyright (including future copyright and rights in the nature of or analogous to copyright);
(3) Inventions (including patents);
(4) Trade marks, and/or service marks;
(5) Any designs, circuit layouts or other technology;
(6) Know-how, ideas and /or concepts; and
(7) All accrued rights and entitlements, including civil and other rights against third parties, pertaining to the Deliverable and/or the Documentation and arising from or out of the matters referred to in sub-paragraphs (1) through (6).
(g) “Services” means the services to be provided by Wyteboard as set out on the pricing page.
(h) “User Data” means all and any data of any kind input to, stored in and/or retained within or in association with, the Wyteboard SaaS and/or Software, by or on behalf of the User.
This version published: 10/03/2017 15:20:36