Checkbox End User Licence Agreement (February 1, 2020 – May 11, 2020)
1. LICENSE AND ACCEPTANCE OF TERMS
1.1 IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (Agreement) is a legal contract between you, either as an individual or a single corporate or business entity (you), and Checkbox Technology Pty Ltd ABN 35 612 175 685 of Level 10, 130 Pitt Street, Sydney, New South Wales, 2000, Australia (Checkbox, we or us).
1.2 This Agreement governs your use of Checkbox’ platform, the applications generated by the platform which are an expression of data inputted into the platform (Applications) and related online or electronic documentation (such platform and Applications and the documentation collectively referred to herein as the Platform).
1.3 You wish to license the Platform. Your Licence is subject to the Enterprise Customer paying the licence fee as set out in the Checkbox Licence Agreement and the Enterprise Customer authorising your use of the Platform.
1.4 Your license is offered to you, conditional upon your acceptance without modification of the Agreement. You agree to be bound by the terms of this Agreement by accessing and using the Platform via the Website. If you do not agree, do not use the Platform. Your use of and access to the Platform indicates your acceptance of the Agreement, and any other terms, conditions, and notices which appear on the Website, as they exist at that time (collectively, the Agreement). If you do not accept the Agreement, you are not authorized to use the Platform.
1.5 Checkbox reserves the right at any time, at its sole discretion, to change or otherwise modify the Agreement in accordance with the terms and conditions herein. This Agreement may be amended from time to time by notices posted on Checkbox’s Website before the amendment takes effect. If you have reasonable grounds to believe that amendments made by Checkbox will be detrimental to your rights, you may immediately terminate this Agreement without penalty. You should check the Website from time to time so you are aware of any changes. You agree to be bound to any changes to this Agreement if you continue to use the Platform after such modification is posted, and your continued access or use of the Platform signifies your acceptance of the updated or modified Agreement.
2. LICENSE AND SUPPORT
2.1 The Platform is licensed to you and not sold. Subject to the terms of this Agreement, Checkbox hereby grants you a worldwide, non-exclusive, non-transferable, and irrevocable license to use the Platform for the Term (Licence). You may not sub-license the License to any third party.
2.2 Checkbox grants the Licence to you on condition that:
(a) the Platform will only be used by you in accordance with the Platform’s normal operating procedures as notified by us to you from time to time;
(b) unless authorised by this Agreement, you must not copy, modify, reproduce, reverse engineer or otherwise alter in any way the Platform; and
(c) any warranties, so far as they relate to you, are true at all times during the term of this Agreement.
3. ACKNOWLEDGEMENTS, WARRANTIES AND REPRESENTATIONS
3.1 You acknowledge, agree, warrant and represent that:
(a) you have legal capacity, power and authority to enter into this Agreement;
(b) Checkbox owns all intellectual property rights in the Platform and by entering into this Agreement title and/or ownership of the Platform has not been transferred to you;
(c) Checkbox reserves all such rights with respect to the Platform except for the license expressly granted to you in this Agreement. Except for such express license, no right, title, interest or license in or to the Platform, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you;
(d) your use of the Platform is at your own risk;
(e) you will create and maintain true and complete records of any use of the Platform and permit us to inspect these records upon receipt of reasonable notice from the us;
(f) we may pursue any available equitable or other remedy against you as a result of a breach by you of any provision of this Agreement.
3.2 Checkbox acknowledges, agrees, warrants and represents that it has legal capacity, power and authority to enter into this Agreement.
3.3 Other than as set out in this Agreement, the Licensor makes no warranties or representations in relation to the Platform.
4.1 You acknowledge and agree that you will not:
(a) provide access to the Platform to any other person;
(b) reproduce the Platform;
(c) modify, adapt, translate or create any derivative works of the Platform;
(d) attempt to circumvent or disable the Platform or any technology features or measures in the Platform by any means or in any manner;
(e) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Platform;
(f) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Platform to any third party (except as permitted under this Agreement);
(g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Platform or used in connection with the Platform;
(h) use the Platform in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(i) take any action that interferes, in any manner, with Checkbox or its licensors’ rights with respect to the Platform. In addition, title, ownership rights and intellectual property rights in and to any content displayed on the Website or in the Platform, or accessed through the Website or the Platform, is the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.
5. UPDATES, PRIVACY & NON PERSONALLY-IDENTIFYABLE INFORMATION
5.1 You acknowledge that Checkbox has no obligation to provide you with any support for Updates (as defined below) to the Platform except as agreed in this Agreement or an Checkbox Licence Agreement. Checkbox may, from time to time, automatically Update the Platform. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such Updates.
5.2 The Platform may contain automatic communications features which relay certain non-personally identifiable information to Checkbox in connection with the operation of the Platform. This information may include your Platform settings. Checkbox may use this information for research purposes including statistical analysis of aggregate customer behaviour.
6. PRIVACY AND REGISTRATION INFORMATION
6.1 As part of any Platform registration process, Checkbox may request registration-related information, including your name and e-mail address. By providing this information, you consent to its collection and use by Checkbox to provide non-promotional communications regarding the Platform. You will also have the opportunity to opt-in to receive promotional e-mails and materials from Checkbox and its business partners. By choosing the opt-in option, you give your consent to receive such promotional materials from Checkbox and its business partners until you exercise your option to unsubscribe from such communications. Checkbox will not, at any time, share your registration information with third parties unless:
(a) specifically authorized by you;
(b) as required by law or court order;
(c) to third-parties providing related services for Checkbox under appropriate obligations of confidentiality;
(d) in connection with a legal process; or
(e) to an acquirer of all or substantially all of the shares or assets of Checkbox or of the Checkbox division to which this Agreement relates.
7. CONSUMER LAW
7.1 Certain legislation including the Australian Consumer Law and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of services by Checkbox to you which cannot be excluded, restricted or modified (Statutory Rights).
7.2 If you are a consumer as defined in the ACL, the following notice applies to you from Checkbox: “To the extent we are unable to exclude liability for breach of your statutory rights, our total liability for loss or damage you suffer or incur from our breach of your statutory rights is limited to us re-supplying the Platform services to you.”
7.3 Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.
8. DISCLAIMER OF WARRANTY
8.1 The Platform is provided to you “as is” without warranty of any kind, except as provided under Australian Consumer Law. To the maximum extent permitted by applicable law, Checkbox and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Platform. Checkbox does not warrant that the licensed Platform will meet your requirements or be error free. The entire risk arising out of the use or performance of the Platform remains with you. You understand and agree that any Platform, material or data downloaded or otherwise obtained, accessed or used through the use of the Platform, is at your own discretion and risk and that you will be solely responsible for any damage to your computer, system or network, including any loss or corruption of data.
9. LIMITATION ON LIABILITY
9.1 To the maximum extent permitted by applicable law, in no event will Checkbox or its Licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever (nor damages for loss of business profits, business interruption, loss of data, computer system failure, malfunction or other pecuniary loss) arising out of this Agreement, or the use of or inability to use the Platform, even if Checkbox has been advised of the possibility of such damages.
9.2 To the extent permitted by law, Checkbox’ total and aggregate liability for all claims for breach of any of its obligations under this Agreement including for the Platform or breach of any warranty implied by law, however arising, including under contract, tort, negligence, in equity, under statute or otherwise, is limited to replacing or repairing the Platform, or, at our option, $1.
9.3 Checkbox is not responsible or liable for any infections or contamination of your system, damage to your system, or delays, inaccuracies, errors or omissions arising out of your use of the Platform. The Platform is not intended for use in the operation of nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Platform could lead to death, personal injury or severe physical or environmental damage.
9.4 Checkbox is not responsible or liable for any infections or contamination of your system, damage to your system, or delays, inaccuracies, errors or omissions arising out of any third party software or operating system.
10.1 You hereby agree to indemnify, defend and hold Checkbox and its Licensors harmless from and against any and all liabilities, damages, claims, fines and expenses (including reasonable solicitor’s’ fees and costs) arising out of any infringement of our intellectual property rights to the Platform by you.
11.1 We may terminate this Agreement in our sole discretion without incurring any liability to you, if:
(a) the Checkbox Licence Agreement pursuant to which you have been granted access rights to the Platform is terminated or expires;
(b) you commit a non-remediable breach of this Agreement; or
(c) you commit a remediable breach of this Agreement and do not remedy the breach within  days after receiving notice of the breach;
11.2 Upon termination, you must immediately cease all use of the Platform. In addition to any other remedy available to Checkbox, you agree that Checkbox may seek immediate injunctive relief in the event of a breach of this Agreement by you.
11.3 Termination of this Agreement will not release either Party from any rights or liabilities accrued prior to termination or which would have accrued as a result of an act or omission prior to termination but for the termination of this Agreement.
12. FORCE MAJEURE
12.1 If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
13.1 Subject to sub-clause 2, you agree:
(a) not to disclose the Confidential Information to any third party at any time;
(b) to use your best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c) only to use the Confidential Information for the purpose for which it was disclosed by Checkbox and not for any other purpose; and
(d) to be responsible for and assume liability in relation to all of your employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
13.2 Your obligations set out in the above clause do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of you in breach of this Agreement; and/or
(b) received from a third party, except where there has been a breach of confidence; and/or
(c) that must be disclosed by law, provided that you reveals only so much of the Confidential Information as you are required by law to disclose and gives sufficient notice to the Licensor in order to allow the Licensor to object to, or otherwise prevent, the Confidential Information being disclosed.
13.3 This clause will survive termination of this Agreement.
14. RELATIONSHIP OF PARTIES
14.1 This Agreement does not create an employment, partnership, fiduciary or agency relationship between the Parties.
15.1 This Agreement is personal to the Parties. We may assign or novate this Agreement to another party without your consent. You must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without our prior written consent (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no effect.
16. WAIVER OR VARIATION OF RIGHTS
16.1 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
17. POWERS, RIGHTS AND REMEDIES
17.1 Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
18. CONSENTS AND APPROVALS
18.1 Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally. Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.
19. ENTIRE AGREEMENT AND UNDERSTANDING
19.1 In respect of the subject matter of this Agreement:
(a) this Agreement contains the entire understanding between the Parties; and
(b) all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.
20. GOVERNING LAW AND JURISDICTION
20.1 This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
21. DEFINITIONS AND INTERPRETATION
“Australian Consumer Law” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Business Day” means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.
“Confidential Information” means any information or document about or in any way relating to the terms of this Agreement or the Licensor in any media or form that is acquired by or made available to you in the course of the relationship between the Parties, including but not limited to any information or documents about the Goods, the Licensor’s business, organisational structure, activities, operating procedures, products and services, trade secrets and know how, finances, plans, transactions and policies.
“Checkbox Licence Agreement” means a Platform as a service agreement between Checkbox and an Enterprise Customer.
“Enterprise Customer” means an enterprise customer who has entered into an Checkbox Licence Agreement.
“Parties” means the parties entering into this Agreement.
“Term” means the date on which you have been granted access to the Platform by an administrator under an Checkbox Licence Agreement until the earlier of when such Checkbox Licence Agreement is terminated or expires.
“Updates” means available updates to the Platform, such as bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions.
“Website” means checkbox.ai.