Terms of Use Licence Agreement

SoundSurfer Licence Agreement

 

PLEASE READ THE FOLLOWING LICENCE AGREEMENT. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.

The terms outlined in this document (“Terms”) constitute a legally binding agreement between SoundSurfer Pty Limited ABN 54 646 130 976 (“SoundSurfer”) and the person or entity identified as the “Customer” on the subscription form (including any person using or accessing any SoundSurfer Services as defined in clause 1 of these Terms) (“You”, “Your” or “Customer”).

GENERAL TERMS

1.             Terms

These Terms govern Your use of and access to the application known or referred to as “SoundSurfer” (“Software”) as well as any other services, products, or software that SoundSurfer may make available to You from time to time (collectively, the “SoundSurfer Services”). If You are accessing or using the SoundSurfer Services on behalf of a corporation, firm, association, agency or other organisation (“Business User”), You represent and warrant that You have the power and authority to bind that Business User to these Terms, in which case references in these Terms to “You”, “Your” or “Customer” refer to the Business User.

2.             Access

2.1           Right to access

(a)            Subject to these Terms, SoundSurfer grants You a non-exclusive, limited and non-assignable right to access and use the SoundSurfer Services (“Licence”) solely to enable You to enjoy the benefits of the SoundSurfer Services as intended and in accordance with these Terms.

(b)            SoundSurfer may update the Software from time to time (this may occur automatically).

2.2           Term and termination

(a)            Your Licence commences on the date Your subscription commences,  and continues for Your subscription period or until Your subscription is cancelled, terminated or otherwise comes to an end.

(b)            Upon termination or expiry of Your subscription for any reason, any right granted to You to use the SoundSurfer Services (including the Intellectual Property Rights in and to the SoundSurfer Services) under these Terms ceases and You must (and must procure that any and all Authorised Users) immediately cease using the SoundSurfer Services (other than as contemplated in clause 2.2(d)).

(c)            SoundSurfer will store Customer Data (as defined in clause 6.3(a)) for 12 months following termination or expiry of Your subscription, after which time SoundSurfer cannot guarantee that You will be able to access that data.

(d)            During the 12 months following termination or expiry of Your subscription, You will have ‘Read only’ access rights where you will be able to view Your previously created projects and data, but not be able to edit any projects or data. Your access to the SoundSurfer Services during this period is subject at all times to these Terms.

2.3           Documentation

The SoundSurfer Services (including the Software) may be provided with a user manual or other explanatory documentation relating to the use of the SoundSurfer Services in either printed or electronic form (“Documentation”).  You may copy any Documentation only on the basis that the copies are used solely in connection with the SoundSurfer Services and not for any other purpose including, without limitation, for distribution to any third party.

2.4           Privacy policy and personal information

When You download, access or otherwise use any SoundSurfer Services, You may provide SoundSurfer with certain personal information and certain other information relating to Your business. You represent and warrant to SoundSurfer that You will not provide any false information. SoundSurfer will use, store and handle any personal information in accordance with the requirements of the Privacy Act 1988 (Cth) that apply to SoundSurfer and SoundSurfer’s Privacy Policy, which is accessible at [#URL].  SoundSurfer’s Privacy Policy applies to You and Your use of SoundSurfer Services at all times.

3.             Restrictions on use

3.1           Registration

(a)            Your access to or use of the SoundSurfer Services may be conditional upon You completing a registration process, opening an account, and/or subscribing and paying subscription fees as set out in these Terms, on SoundSurfer’s website or as otherwise communicated to You by SoundSurfer.

(b)            You are responsible for protecting Your password from unauthorised use. You agree to notify SoundSurfer immediately if You become aware of any unauthorised use of Your password or any other breach of security involving Your account.  SoundSurfer is not liable for any loss if someone else uses Your password or account.

3.2           Limited access

(a)            Where You are a Business User, You must limit access to the SoundSurfer Services solely to You and that number of Your employees, agents and contractors specified in the subscription plan (“Authorised Users”).

(b)            The Customer must ensure all Authorised Users who access the SoundSurfer Services are made aware of, agree to and comply with these Terms.

(c)            The Customer is liable for all acts or omissions of Authorised Users as if they were the Customer’s acts or omissions.

3.3           Your obligations

(a)            You must:

(1)            not copy, reproduce, translate, adapt, vary, modify, reverse engineer or reverse compile the Software (or permit another person to do so) without SoundSurfer’s express consent, except as expressly authorised by these Terms;

(2)            not create or permit to exist any encumbrance over the SoundSurfer Services or any part of the SoundSurfer Services without SoundSurfer’s prior written consent;

(3)            supervise and control the use of the SoundSurfer Services in accordance with these Terms; and

(4)            only use the SoundSurfer Services in compliance with all applicable laws and not use, or allow any other person to use, the SoundSurfer Services for any illegal purpose.

(b)            You are responsible for all networks, systems, internet services, telecommunications and any other facilities (including any associated fees and charges) used or required by You for Your access to, or use of, the SoundSurfer Services.

4.             Payment

4.1           Fees

(a)            You acknowledge and agree that Your access to and use of the SoundSurfer Services is conditional upon payment of all fees outlined in the subscription plan (“Fees”).

(b)            Fees will be charged:

(1)            monthly in advance for users on a monthly subscription, or

(2)            annually in advance for users on an annual subscription,

and will be charged automatically via Direct Debit from the payment card specified when registering Your subscription.

(c)            You may cancel Your subscription by [providing written notice to SoundSurfer].  If Your subscription is cancelled or otherwise comes to an end before the end of Your then-current subscription period, You will not be entitled to a refund of Fees or any part of any Fees paid with respect to Your subscription.

4.2           GST

Where applicable, You agree to pay for all GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) and other similar taxes imposed in any jurisdiction in connection with the supply of the SoundSurfer Services to You.

5.             Generated Data

5.1           Dependencies

You acknowledge and agree that:
(a)            any data, information, results, outputs, reports, maps and/or recommendations generated through Your or any Authorised User’s use of the SoundSurfer Services (“Generated Data”) may be subject to variables and factors that are unforeseeable or otherwise outside SoundSurfer’s control (including, but not limited to, the reliability of any data captured inputted by You or any Authorised User); and

(b)            the Generated Data is intended:

(1)            as a supplement to aid, but not replace, specialist human judgement; and

(2)            to be evaluated in conjunction with such other tools and information that a human specialist would use or account for in making decisions on matters relating to the Generated Data.

5.2           Reliance

(a).          You are responsible for ensuring that appropriate measures and processes are in place to verify Generated Data before any decision or action is taken on the basis of such Generated Data.

(b)            All reliance on the Generated Data is at Your own risk. You release and indemnify SoundSurfer from and against any claims arising directly or indirectly as a result of You or any other person relying on any Generated Data.

6.             Intellectual Property Rights

6.1           SoundSurfer’s Intellectual Property Rights

The SoundSurfer Services (including all Intellectual Property Rights in and to the SoundSurfer Services) are owned, and remain with, SoundSurfer (or third party licensors as the case may be) and, other than as expressly set out in these Terms, You do not have any rights or licence to use any or part of such SoundSurfer Services, nor to copy, reproduce or provide to any third party any such SoundSurfer Services in any medium or manner without Our prior written consent.

6.2           Valuable information

You acknowledge that the SoundSurfer Services contains valuable confidential and proprietary information of SoundSurfer and, where applicable, its licensors.  You agree that any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the SoundSurfer Services, or any actual or threatened breach of these Terms, shall cause SoundSurfer immediate, irreparable harm for which monetary damages alone would be an inadequate remedy and that, to the extent permitted by law, SoundSurfer is entitled to seek any alternate relief (including, without limitation, injunctive or equitable relief) in relation to any such actual or threatened breach.

6.3           Your Intellectual Property Rights

(a)            Title to, and all Intellectual Property Rights in and to, all of Your information provided to SoundSurfer in in connection with Your use of the SoundSurfer Services, and all data inputted, generated or otherwise uploaded to the SoundSurfer Services by You or with Your authority including without limitation the Generated Data (“Customer Data”), is and remains Your property. SoundSurfer does not claim ownership of Customer Data and You will continue to own any and all Intellectual Property Rights in such information.

(b)            SoundSurfer will keep Customer Data confidential and will use reasonable endeavours to prevent data loss with respect to Customer Data, however SoundSurfer does not make any guarantee that such data loss will not occur.

(c)            You agree to grant SoundSurfer a non-exclusive, worldwide, royalty-free licence to use Your Customer Data to the extent required by SoundSurfer to provide You with the SoundSurfer Services and to perform any other services SoundSurfer has agreed to provide You with respect to the SoundSurfer Services, these Terms or any Services Agreement.

6.4           Aggregated Data

SoundSurfer may de-identify the results, data, trends and other information generated from Your use of the SoundSurfer Services (which may or may not include Customer Data) by removing any and all personal identifiers and removing or altering other information that may allow personal identification or identification of a particular location or premises (“Aggregated Data”). To the extent that Aggregated Data is owned by You, You grant SoundSurfer an irrevocable, non-exclusive, perpetual, worldwide, royalty-free licence (with the ability to sub-licence) to use the Aggregated Data for such purposes as SoundSurfer sees fit. SoundSurfer will not re-identify, nor will it permit the re-identification of, any Aggregated Data.

6.5           Meaning of Intellectual Property Rights

For the purposes of these Terms, “Intellectual Property Rights” includes any and all registered or unregistered rights in (including rights to apply for registration, renewal or extension of) any copyrights, patents, inventions, discoveries, trade secrets, processes, methodologies, know-how, specifications, computer programs or software, source or object codes, trademarks, logos, designs or confidential information or any rights of a similar nature under the laws of Australia or anywhere else in the world.

7.             Third party software

7.1           Third Party Programs

Certain SoundSurfer Services may, from time to time, contain or be accompanied by other programs, which are the property of third parties (“Third Party Programs”).  Any terms for the use of Third Party Programs will be provided with or accessible through the Software or the Third Party Program.

7.2           Deemed acceptance

By using the SoundSurfer Services, You are taken to have accepted the terms for use of such Third Party Programs.

7.3           Accessing external websites or third party material

The SoundSurfer Services may contain links to, or frame, or enable You to access, external websites or third party material that is not under the control of SoundSurfer. Links to or framing of external sites or third party material should not be construed as any endorsement, approval, recommendation or preference by SoundSurfer of the owners or operators of the external sites or material, or for any information, products or services referred to on the external sites or material unless expressly indicated by SoundSurfer. SoundSurfer has no control over and assumes no responsibility for external sites or materials nor the content, privacy policies or practices of any external site or owners of any third party material.  SoundSurfer makes no warranties and accepts no liability in relation to material contained on external sites or Your use of any external websites or third party material. You are subject to the policies of those external sites or third parties where applicable. By using the SoundSurfer Services You release SoundSurfer from any and all liability arising from Your use of any external website or third party material accessed from Your use of the SoundSurfer Services.

7.4           Third party components

If You install any third party component, on or in conjunction with the SoundSurfer Services, You are solely responsible for Your use of those third party products.

8.             Exclusions and limitations of liability

8.1           No warranty

SoundSurfer will provide the SoundSurfer Services with reasonable skill and care, but otherwise:

(a)            the SoundSurfer Services are provided “as is” and “as available”;

(b)            SoundSurfer excludes, to the maximum extent permitted by law, all warranties, conditions claims and representations with respect to the SoundSurfer Services; and

(c)            SoundSurfer does not warrant:

(1)            against interference with Your enjoyment of the SoundSurfer Services;

(2)            that the functions contained in or services performed or provided by the SoundSurfer Services will meet Your requirements or will be fit for a particular purpose;

(3)            that the operation of any of the SoundSurfer Services will be uninterrupted or error free; or

(4)            that any defects in the SoundSurfer Services will be detected or corrected.

8.2           Exclusion of liability

To the maximum extent permitted by law, SoundSurfer excludes all liability (whether in contract, tort or otherwise) to You for any loss, costs, claims or damage of any kind (including, without limitation, resulting from any loss of income, loss of profits, loss of goodwill, loss of contract, loss of business, loss of reputation, loss of use, partial or total loss or corruption of data, any form of business interruption, increased cost of working, loss suffered as a result of claims by any third party or any other special, consequential, indirect or incidental damages) arising out of or in connection with the SoundSurfer Services or otherwise in connection with these Terms, however caused, even if SoundSurfer or its officers, employees, agents or contractors knew of the possibility of such loss, costs, claims or damage or it was otherwise foreseeable.

9.             Liability and Indemnity

9.1           Limitation of liability

If any exclusion or limitation of any liability or warranty contained in these terms, is ineffective, or if a condition, warranty or term is implied in relation to the SoundSurfer Services, or otherwise in connection with these Terms, to the maximum extent permitted by law, the liability of SoundSurfer will be limited, at SoundSurfer’s election, to:

(a)            in relation to goods, the resupply of the goods, the repair of the goods or the payment of the cost of having the goods repaired; or

(b)            in relation to services, the resupply of the services or the payment of the cost of having the services resupplied.

9.2           Total liability

Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, in no event shall the liability of SoundSurfer, its licensors or authorised distributors or resellers exceed the Fees You have paid to SoundSurfer.

9.3           Indemnity

You agree to indemnify, defend and hold harmless SoundSurfer, its officers, directors, agents, employees, and representatives from and against any and all losses, expenses, third party claims, demands, defence costs, actions or liability of any kind or nature arising out of or in connection with Your or any of Your Authorised User’s:

(a)            breach of any obligations under these Terms; or

(b)            use of the SoundSurfer Services,

except to the extent that any such claim arises out of the gross negligence or wilful misconduct of SoundSurfer or its officers, directors agents or employees.

10.         General

10.1        Survival

Each provision of these Terms which by its nature is capable of surviving the termination of these Terms, shall continue to have application after termination.

10.2        Entire agreement

These Terms constitute the entire understanding between the parties as to their subject matter and supersede all prior agreements, understandings and communications, whether written or oral, in relation to their subject matter.

10.3        Severability

If any provision of these Terms is illegal or unenforceable in any relevant jurisdiction, it will be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting the enforceability of any other part of these Terms.

10.4        Assignment

You may not assign Your rights and/or obligations under these Terms to any third party without SoundSurfer’s prior written consent.

10.5        SoundSurfer Rights cumulative

Except as expressly stated otherwise in this document, the rights of SoundSurfer under these Terms are cumulative and are in addition to any other rights of SoundSurfer.

10.6        Amendment

SoundSurfer reserves the right to amend these Terms from time to time. SoundSurfer will communicate any change to these Terms to You in advance (such as by updating the SoundSurfer website at “[URL]”).  By continuing to access or use the SoundSurfer Services after such a change takes effect, You are deemed to have accepted, and agreed to be bound by, the new Terms.

10.7        Governing law

These Terms are governed by the laws of South Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of South Australia.