Checkbox End User License Agreement

Effective starting: 12 May 2020

1.     ACCEPTANCE OF TERMS

1.1.        IMPORTANT – PLEASE READ CAREFULLY: This End User Licence Agreement (“EULA”) is a legal contract between you, either as an individual or a single corporate or business entity (“you” or “your”), and Checkbox Technology Pty Ltd ABN 35 612 175 685 (“Checkbox”, “we”, “us” or “our”), each a “Party” and, together, the “Parties”.

1.2.        Software. This EULA governs your use of the Checkbox platform, the applications generated by the platform which are an expression of data inputted into the platform (“App”) and related online or electronic documentation (such platform and Applications and the documentation collectively referred to herein as the “Software”).

1.3.        Application of EULA. This EULA applies jointly and severally to:

(a)        a customer of Checkbox authorised to use the Software (“Customer”);

(b)        you, where you are invited by the Customer to use the Software as an authorised user in accordance with the terms of the Customer’s agreement with us (“Customer Agreement”); and

(c)        any other person or entity using or accessing the Software, including if you access and use the Software through publicly accessible links.

1.4.        Customer Agreement. If applicable, the terms of this EULA are deemed incorporated into the Customer Agreement with you, and to the extent of any ambiguity or inconsistency, the terms of the Customer Agreement will prevail.

1.5.        Acceptance and Term. You accept this EULA by clicking a box indicating acceptance via our Website or by otherwise accessing or using the Software. This EULA will commence on the date on which you accept this EULA and will continue until the date this EULA is terminated in accordance with section 9. If you do not accept this EULA, you are not authorised to use the Software and you should not use the Software.

1.6.        Modifications to EULA. Checkbox reserves the right at any time, at its sole discretion, to change or otherwise modify this EULA, and we may post notices on Checkbox’s Website before the amendment takes effect. If you have reasonable grounds to believe that amendments made by Checkbox will be materially detrimental to your rights, you may immediately terminate this EULA 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 EULA if you continue to use the Software after such modification of the EULA, and your continued access or use of the Software signifies your acceptance of the updated or modified EULA.

2.     LICENCE AND SUPPORT

2.1.       Licence. In consideration for your compliance with this EULA, and if applicable, subject to the terms of the Customer Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under the Customer Agreement), personal and revocable licence to access and use the Software for the Term, as is expressly permitted by Checkbox as set out on the Website or the Customer Agreement (“Licence”).

2.2.        Licence fee. You agree that your Licence may be subject to the Customer paying a fee as set out in the Customer Agreement and the Customer authorising your use of the Software

2.3.        Conditions. Checkbox grants the Licence to you on condition that:

(a)        the Software will only be used by you in accordance with the Software’s normal operating procedures as notified by us to you from time to time (including as set out on the Website); and

(b)        you comply with, this EULA and the Checkbox Policies and any other referenced policies and terms.

2.4.       Restrictions. Unless expressly authorised in this EULA, you will not:

(a)        reproduce, modify, adapt or create derivative works of the Software;

(b)        rent, lease, distribute, sell, or transfer the Software to a third party;

(c)        interfere with or otherwise circumvent mechanisms in the Software intended to limit your use;

(d)        reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);

(e)        remove or obscure any proprietary or other notices contained in any Software;

(f)        use the Software for competitive analysis or to build competitive products; or

(g)        encourage or assist any third party to do any of the foregoing.

2.5.        Support services. If applicable to you according to the Customer Agreement with the Customer, we will provide you with support services, in accordance with the specifications of the Customer Agreement and the Checkbox Support Policy. Where we provide any support services to you, you agree to assist us in investigating and ascertaining the cause of any applicable issues and provide us with access to all necessary information relevant.

2.6.        Third party inputs. You agree that the provision of the Software may be contingent on, or impacted by, Third Party Inputs that may interface or interoperate with the Software, including third party software or services. To the extent that you use such Third Party Inputs, you are responsible for, the purchase of, the requirements and the licensing obligations, related to the applicable Third Party Inputs, including third party software and services.

2.7.        Updates. You acknowledge that Checkbox has no obligation to provide you with any support for Updates to the Software except as agreed in the Customer Agreement. Checkbox may, from time to time, automatically Update the Software. You consent to such automatic upgrading, and agree that the terms and conditions of this EULA will apply to all such Updates.

3.     YOUR WARRANTIES AND REPRESENTATIONS

3.1.        Your warranties. You warrant that:

(a)        you have the right, power, authority and entitlement to execute this EULA and perform your obligations under this EULA;

(b)        this EULA constitutes a legal, valid and binding obligation and is enforceable in accordance with its terms by appropriate legal remedy;

(c)        in entering into and performing your obligations under this EULA you have not, and will not, be in breach of any relevant law or any obligation owed to another person;

(d)        there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which you are involved and that will or may have an adverse effect on your ability to comply with this EULA;

(e)        you have all necessary licenses, approvals, permits and consents to enter into and perform your obligations under this EULA;

(f)        you have all hardware, software and services which are necessary to access and use the Software; and

(g)        all information and documentation that you provide to us in connection with this EULA is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Software.

4.     INTELLECTUAL PROPERTY

4.1.        Intellectual Property Rights. A Party’s ownership of, or any right, title or interest in, any and all intellectual and industrial protection rights throughout the world including copyright (past, present and future copyrights and rights in the nature of or analogous to copyright), inventions, patents, designs, registered and unregistered trademarks, know-how and circuit layout rights, whether registrable or not, anywhere in the world (“Intellectual Property Rights”) in all products, services, software, documentation and other material provided by either Party under this EULA, including any developments, updates, advancements, modifications or adaptations of those products, services, software, documentation and any other material, will not be altered, transferred or assigned by virtue of this EULA. For the avoidance of doubt:

(a)        Checkbox is the owner of the Software, documentation related to the Software, and any anonymised analytics of Data and usage generated by the Software; and

(b)        you are the owner of, or you have secured any and all authorisations and rights to allow us to use, any content, design, documentation and any other input that has been provided to Checkbox or has been included or generated in the creation or use of the Software or an App.

4.2.       Use of Your Intellectual Property. You grant Checkbox a non-exclusive, royalty free, non-transferable and revocable licence to use any of your Intellectual Property Rights as reasonably required for Checkbox to provide the intended operation of the Software to you.

4.3.        Intellectual Property of Software Developments. Any Intellectual Property Rights created as a result of modifications and developments to the Software will vest in Checkbox on creation and to the extent that such Intellectual Property Rights do not automatically vest in Checkbox, you must promptly do any and all acts reasonably requested by Checkbox for the Intellectual Property Rights to vest in Checkbox.

5.     CONFIDENTIALITY

5.1.        Confidential Information. Subject to section 5.2, you agree not to disclose Confidential Information to any third party at any time; to use your best endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by Checkbox and not for any other purpose; and 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.

5.2.        Exclusions to confidentiality. Your obligations set out in section 5.1 do not apply to Confidential Information that is already in the public domain, except as a result of the actions of you in breach of this EULA; received from a third party, except where there has been a breach of confidence; and/or that must be disclosed by law, provided that you reveal only so much of the Confidential Information as you are required by law to disclose and gives sufficient notice to Checkbox in order to allow Checkbox to object to, or otherwise prevent, the Confidential Information being disclosed.

6.     YOUR DATA

6.1.        Use of your Data. You, or the parties nominated by you, retain all right, title and interest in and to your Data in the form submitted to the Software. You grant Checkbox a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to your Data:

(a)        to allow you to access and use the Software;

(b)        for diagnostic and support purposes;

(c)        to conduct analytics about how users interact with the Software and content that Checkbox provides, the characteristics of our user base and other data derived from the data we collect from or about our users;

(d)        to test, enhance and otherwise modify the Software; and

(e)        as reasonably required for the performance of Checkbox’s obligations under this EULA.

6.2.        Data Compliance Obligations. You represent and warrant that any and all Data supplied by you or otherwise accessed by Checkbox through the provision of the Software is your sole and exclusive property or that you have secured any and all authorisations and rights to allow us to use the Data. Notwithstanding any other provision to the contrary, to the maximum extent permitted by law, Checkbox assumes no responsibility or liability (including any Liability) for your Data, and you are solely responsible, and you waive and release us from any Liability, for your Data and the consequences of submitting and using it with the Software.

6.3.        No Sensitive Personal Information. You will not submit to the Software any Sensitive Personal Information unless its processing is expressly supported as a feature of the Software. Notwithstanding any other provision to the contrary, to the maximum extent permitted by law, we have no liability for any Liability under this EULA, and you waive and release us from any Liability, for Sensitive Personal Information submitted in violation of the foregoing.

7.     DISCLAIMER

7.1.        General disclaimer. Checkbox and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. To the maximum extent permitted by law, Checkbox will not be liable, and you waive and release Checkbox from any liability (including any Liabilities) for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Checkbox. To the maximum extent permitted by law, neither Checkbox nor any of its third-party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any Software or any content therein or generated therewith, or that:

(a)        the use of any Software will be secure, timely, uninterrupted or error-free;

(b)        the Software will operate in combination with any other hardware, software, system, or data;

(c)        the Software (or any products, services, information, or other material purchased or obtained by you through the Software) will meet your requirements or expectations);

(d)        errors or defects will be corrected; or

(e)        the Software is free of viruses or other harmful components.

7.2.        Statutory rights. Nothing in this EULA excludes any applicable statutory right that may apply to you which cannot be excluded, restricted or modified (“Statutory Rights”). If any Statutory Rights apply to you, the duration of applicable statutorily required warranties, if any, will be limited to the shortest period permitted by law.

8.     LIMITATION ON LIABILITY AND INDEMNITY

8.1.        General limitations. Despite anything to the contrary, to the maximum extent permitted by law:

(a)        our maximum aggregate Liability arising from or in connection with this EULA (including the Software or the subject matter of this EULA) will be limited to, and must not exceed in the aggregate for all claims, $1;

(b)        we will not be liable to you for any Consequential Loss; and

(c)        each Party’s liability for any Liability under this EULA will be reduced proportionately to the extent that the Liability was caused, or contributed to by, the acts or omissions of the other Party.

8.2.        Despite anything to the contrary, to the maximum extent permitted by law, you indemnify and continue to indemnify us against any and all Liability we suffer or incur arising from or as a consequence of a breach of your use of the Software contrary to this EULA, including from any claim relating to the Data or Intellectual Property Rights.

8.3.        Despite anything to the contrary, to the maximum extent permitted by law, Checkbox will not be liable to you for any Liability caused or contributed to by:

(a)        a fault or defect in any item of Your Environment; or

(b)        any Force Majeure Event.

(c)        failure caused by any third-party service provider used to provide the Software (including Third Party Inputs).

9.    TERMINATION

9.1.        Termination by us. We may terminate this EULA in our sole discretion without incurring any liability (including any Liability) to you, if:

(a)        the Customer Agreement pursuant to which you have been granted access rights to the Software is terminated or expires;

(b)        you commit a non-remediable breach of this EULA; or

(c)        you commit a remediable breach of this EULA and do not remedy the breach within 30 days after receiving notice of the breach.

9.2.        Termination by you. If you are Customer, you may only terminate this EULA in accordance with the Customer Agreement.

9.3.        Effects of termination. Upon termination, you must immediately cease all use of the Software. 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 EULA by you.

9.4.        Continued rights. Termination of this EULA 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 EULA.

9.5.        Survival. Sections 4 (IP), 5 (Confidentiality), 6 (Your Data), 7 (Disclaimer), 8 (Limitation on Liability and Indemnity), 9.3 – 9.5 (Termination) and sections 10 – 17 (General) intend to survive the expiry or termination of this EULA.

10.   FORCE MAJEURE

If performance of this EULA or any obligation under this EULA is prevented, restricted or interfered with by causes beyond either Party’s reasonable control (“Force Majeure Event”), including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, pandemic, nuclear contamination, terrorism, war or civil riot, and the affected Party is unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the affected Party invoking this provision shall be suspended to the extent necessary by such Force Majeure Event. The affected Party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure Event is removed.

11.    ASSIGNMENT

This EULA is personal to the Parties.  We may assign or novate this EULA to another party without your consent. You must not assign or deal with the whole or any part of your rights and/or obligations under this EULA without our prior written consent (such consent not to be unreasonably withheld). Any purported dealing in breach of this section is of no effect.

12.   NOTICE

Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to us at the contact details below and to you on the contact details provided by you to us. A Party may change its notice details by written notice to the other Party. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 3 business days in the case of post, or at the time of transmission in the case of email.

13.    WAIVER OR VARIATION OF RIGHTS

Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this EULA does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.

14.   SEVERABILITY

If any provision (or part of it) of this EULA is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of this EULA cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this EULA and the remaining provisions (and remaining part of the provision) of the EULA are valid and enforceable.

15.   ENTIRE AGREEMENT

This EULA, any Customer Agreement, and any other agreement entered with you, or the Customer, constitutes the entire agreement between the Parties in relation to the subject matter of this EULA and there are no conditions, warranties or other terms affecting the agreement between the Parties other than those set out in this EULA, any Customer Agreement, and any other agreement entered with you, or the Customer, and the same will supersede all prior undertakings, arrangements and agreements.

16.   GOVERNING LAW AND JURISDICTION

This EULA 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.

17.   DEFINITIONS

Capitalised terms are defined in this section 17, and others are defined contextually in this EULA.

“Confidential Information” means any information or document about or in any way relating to the terms of this EULA or Checkbox 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 Software, Checkbox’s business, organisational structure, activities, operating procedures, products and services, trade secrets and know how, finances, plans, transactions and policies.

“Checkbox Policies” means Checkbox’s Acceptable Use Policy, Privacy Policy, Support Policy, and (unless otherwise specified) any other policies or terms referenced in this EULA.

“Consequential Loss” includes any consequential, indirect, special or incidental loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

“Data” means all of the information, documents, content, code, video, images and other data provided by users or made available by users to the Software, or otherwise accessed by Checkbox in providing the Software.

“Liability” means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this EULA or otherwise.

“Sensitive Personal Information” means information, which may be collected or used to identify a person, and which is sensitive in nature, including, but not limited to, information relating to racial or ethnic origin, political opinions, religion, trade union or other professional associations or memberships, philosophical beliefs, sexual orientation or practices, criminal records, health information or biometric information.

“Term” means the period between the date on which you have been granted access to the Software until the earlier of when this EULA is terminated or otherwise expires under the Customer Agreement (if applicable).

“Third Party Inputs” means third parties or any goods and services provided by third parties, including customers, end users, suppliers, or services providers or other subcontractors which the provision of the Software may be contingent on, or impacted by.

“Updates” means available updates to the Software, such as bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions.

“Website” means checkbox.ai.

“Your Environment” means all hardware, software, information technology and telecommunications services and systems, network or any device controlled by you or your employees, representatives, consultants, contractors, agents or other third parties who are acting on your behalf.