END-USER LICENCE AGREEMENT FOR ATS PRODUCTS
You have purchased a product from Aussie Time Clocks Pty Ltd ABN 20 163 959 779 of Shop 3, 652 David Low Way, Pacific Paradise, Queensland 4565 trading as "Aussie Time Sheets" ("ATS"). By using ATS's Products, you and your Authorised Users (“Licensee”) are deemed to expressly accept and be legally bound by the following terms and conditions of your use of the Product.
Please read the terms and conditions of this EULA carefully. If you do not wish to be bound by the EULA, immediately cease using the ATS Product and notify ATS that you are not prepared to be bound by the EULA. Upon installation and use of the Product, this EULA becomes a legal agreement between the Licensee and ATS and the Licensee is legally bound by the terms and conditions of this EULA.
- Definitions and Interpretation
“EULA” means this End User Licence Agreement whereby you are granted the Licence to use the Product for the Purposes in accordance with these terms and conditions;
“Intellectual Property Rights” includes, but is not limited to, any rights created at law anywhere in the world to any concepts, ideas, methods, procedures, processes, know-how, publications, models, copyright, products, programs, software, technology, techniques, templates, designs, plans, photographs, graphics, logos, proprietary or confidential information, trade marks or patents (registered or not), in any medium;
“Licence” means the revocable, non-exclusive and non-transferable right to install and activate the Product on two separated computers solely for your personal and Non-Commercial Use granted to the Licensee under this EULA;
“Non-Commercial Use” means any use that does not confer a direct or indirect benefit or financial gain on the Licensee or the Licensee’s associates or related entities but does not include the use in the Licensee’s business for the Purposes and in accordance with this EULA;
“Product” or “Products” means a computer software program supplied by ATS;
“Purpose” the purposes of recording employee time and attendance, tracking general human resources data on employees, calculating time sheets for payroll and exporting time and attendance data to payroll software and for no other purpose;
“Regulatory Requirements” means all applicable laws, regulations, statutes and codes of practice, including without limitation, laws and regulations applicable to privacy, intellectual property rights, copyright and moral rights; and
"User Data" means any material, information or data which is uploaded to the Product from time to time.
- Warranty of Authority. The person who has agreed to be bound by the terms of this EULA warrants that he/she has the authority of and was authorised by the Licensee to agree to acceptance on behalf of the Licensee and agrees that this EULA is binding on the Licensee. If for any reason the terms and conditions of this EULA are not binding upon the Licensee in the Licensee’s jurisdiction, then the Licensee is prohibited from using the Product in any manner whatsoever and must promptly return the Product together with all media, Manuals and packaging to ATS.
- Term of the EULA. The Licensee may only use the Product from the date on which the Product is installed on the Licensee’s computer system (“Commencement Date”) to the date on which this EULA is terminated in accordance with this EULA (“Term”).
- Number of Users Authorised. The Licensee agrees that on being supplied with the Product or purchasing the Licence to use the Product, the Licensee nominated the number of users prior to the Commencement Date who would be installing and using the Product pursuant to this EULA and the Licensee warrants that the Licensee has paid licence fees based on the number of users specified by the Licensee (“Authorised Users”).
- Use of Product. The Licensee agrees that the Product must be used in accordance with all Regulatory Requirements and only be used by the Licensee:
- during the Term for the Purpose;
- in accordance with the terms and conditions of this EULA and any acceptable use policy provided to the Licensee by ATS;
- in accordance with any requirements or directions of ATS from time to time in relation to security measures, procedures and policies relating to ATS Intellectual Property; and
- by the Authorised Users.
The Licensee must obtain all privacy consents required to use the Product and disclose the User Data to ATS, and warrants and represents to ATS that it has obtained all required privacy consents. Without limitation to the foregoing, the Licensee must obtain the prior written consent from each employee or contractor to collect, store and manage an employee’s or contractor’s biometric data and other personal information using the Product.
- Developments and Improvements to the Product. ATS may from time to time during the Term undertake research and development of the Product to ensure it is updated from time to time and that on completion of the research and development process, it may supply the Licensee with an electronic update for the Product for installation and use by the Licensee (“Updates”). The Updates will only be supplied to the Licensee if the Licensee has the prior written agreement with ATS to provide the maintenance and support of the Product to the Licensee. On being supplied with the Updates, the Licensee must install and use the Updates in conjunction with the Product and upon such installation, the Product and the Updates become the “Product” for the purposes of this EULA.
Intellectual Property Ownership. The Licensee acknowledges and agrees that nothing in this EULA or otherwise grants to the Licensee any rights of ownership in all or any part of the Products and that:
- all Intellectual Property Rights in and to the Product belong to ATS;
- all Intellectual Property Rights in and to the Updates belong to ATS;
- all Intellectual Property Rights in and to the manuals, procedures and other documents which have been provided to the Licensee in any medium to assist the Licensee in the use of the Product (“Manuals”) belong to ATS;
(the property specified in sub-clauses 6(a) to (c) inclusive individually and collectively called “ATS Intellectual Property”);
- subject to the provisions of clause 7 of this EULA, the Licensee must not copy, adapt, alter, re-compile or reverse engineer ATS Intellectual Property nor rent, lease, sell, sub-licence, assign or otherwise transfer ATS Intellectual Property to any third party or use it for the Licensee’s own personal or commercial gain or for any other person who is associated with or related to the Licensee directly or indirectly, without the express prior consent of ATS in writing and duly signed;
- the Licensee must not integrate or incorporate the Product into any other software or hardware, without the prior consent of ATS in writing and duly signed;
- the Licensee must not apply to register any ATS Intellectual Property, or any ATS trade marks used in connection with the Product, anywhere in the world;
- to the extent the Licensee creates any User Data through its use of the Product, the Licensee:
- grants ATS a non-exclusive, transferrable, global, royalty-free license to use, copy, modify, adapt, publish, disclose, transmit or broadcast, and sub-license any User Data for the purpose of providing the Product and Updates; and
- warrants that it is the owner of the User Data, or otherwise has the authority to license the User Data to ATS and that the User Data does not violate any laws, regulations, or the rights of any third party; and
- the Licensee must immediately inform ATS of any matter or thing which comes to the Licensee's attention which affects or may affect the security or ownership of the ATS Intellectual Property or which relates to any infringement of the ATS Intellectual Property by the Licensee or any third party.
- Back Up Copy. The Licensee may take a copy of the Licensee’s files produced as a result of utilizing the Product for use as a back-up copy provided that back up copy is only used for the Purpose.
Termination. This EULA may be terminated at any time in accordance with the following:
- by ATS and the Licensee agreeing in writing;
- if the Licensee is in breach of this EULA and the Licensee is unable to or fails to remedy the breach within 30 days from the date that ATS delivers a written notice of breach to the Licensee setting out the nature of the breach, the manner in which it must be remedied and the date on which this EULA will terminate if the Licensee fails to remedy the breach, and
the date on which this EULA is terminated in accordance with this clause is called (“Termination Date”).
Actions on Termination.
- On or before the Termination Date, the Licensee must return to ATS all copies of the Product including the back-up copy of the Product, ATS Intellectual Property and any of ATS' confidential information which has come into the possession or under the control of the Licensee; and
- from the Termination Date, this EULA will be terminated and ATS may, in its absolute discretion, terminate all access by the Licensee to the Product.
- Third Party Software. If the Licensee purchases any software from any person to be used in conjunction, connection or association with the Product for any reason including to add functionality to the performance of the Product (“Third Party Software”), ATS will not be liable for any loss or damage that occurs to the Product or the Licensee’s computer system unless ATS has prior knowledge of the proposed use by the Licensee of the Third Party Software and has consented to its use and such loss or damage is caused by the negligence of ATS.
Indemnity. The Licensee indemnifies and keeps indemnified ATS its directors, officers, employees, contractors and agents from and against all actions, claims, notice, demand, proceeding, investigation, judgement, damages, loss, costs, liability and expenses (including legal costs on a solicitor and own client basis) ("Loss") however arising, whether present, unascertained, immediate, future or contingent, and whether based in contract, tort, statute, or otherwise, which have been caused by:
- the deliberate acts and omissions or negligence of the Licensee including (without limitation) the Licensee's breach of a third party's Intellectual Property Rights or privacy rights, or any breach by the Licensee of this EULA (including any warranty provided under this EULA); or
- the Licensee's use of the Product or exercise of the Licence or the use by the Licensee of any third party software or products in conjunction, connection or association with the Products, provided such Loss is not caused by the negligent acts or omissions of ATS .
Limitation of Liability.
- If it is established that the Product is not fit for the purpose intended or is unmerchantable within the meaning of the fair trading or consumer protection legislation of either a State of Australia or the Commonwealth (“Consumer Legislation”), or otherwise breaches any condition, warranty or guarantee applicable under any Consumer Legislation, to the maximum extent permitted at law, the liability of ATS is limited to (at the option of ATS) the replacement of the Product or re-provision of the services for which the breach of Consumer Legislation occurred, or refunding the value of the Product or service.
- The Licensee acknowledges that ATS will not be responsible or liable for any:
- loss or damage to the extent that the Licensee or any other person contributed to the loss or damage;
- loss, damage or expenses to the extent that the Licensee could have avoided or reduced the amount of the loss, damage or expense, by taking reasonable steps to mitigate it loss; or
- loss of profit, loss of revenue, loss of contract, damage to reputation, loss of opportunity, loss of data, consequential, incidental, direct or indirect damage of any kind whatsoever arising out of the use of the Product by the Licensee pursuant to this EULA, even if ATS have been advised of the possibility of such loss.
- ATS's maximum liability to the Licensee with respect to the Product and the Licence is limited to the price paid to ATS for the Product.
- Nothing in this EULA excludes any liability under any Consumer Legislation that cannot be excluded by law.
- Except for any express warranty provided by ATS, ATS makes no warranties or representations in relation to the Product. ATS excludes all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any applicable law including Consumer Legislation.
- To the maximum extent permitted at law, subject to any express warranty provided by ATS, the Licensee releases ATS from any liability to the Licensee for any loss, damage, costs or expenses incurred by the Licensee in connection with or arising out of the use of, the Product.
- If the Licensee purchases third party software or products to use in conjunction, connection or association with the Product for any reason, ATS will not be liable to the Licensee for any direct or indirect loss or damage that occurs to the Product or the Licensee's computer system as a result of the use by the Licensee of that third party software or products.
- Defective Product. During the Term, if the Product becomes faulty or defective through no fault of the Licensee or the standard and training of its Authorised Users and ATS is notified by the Licensee of the fault or defect within twelve months of the Commencement Date, ATS will correct the fault or defect or replace the Product at no charge to the Licensee. If the fault or defect cannot be remedied by ATS within ninety (90) days of first being notified of the fault or defect, ATS will refund the price paid by the Licensee to ATS to purchase a Licence to use the Product upon the confirmation of termination of this EULA and the return of all Manuals, media and documentation in any medium as required by clause 10 of this EULA. Such action by ATS shall in no way constitute an admission of liability nor a waiver of any of its rights contained herein or at law. The benefits given to consumers under this clause are in addition to other rights and remedies of consumers under a law in relation to goods or services to which the warranty relates. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The warranty in this clause is provided by ATS:
Business address: Shop 3, 652 David Low Way, Pacific Paradise, Qld. 4565
Telephone number: +61 7 5450 5743
Email address: email@example.com
- No Other Warranty. ATS DOES NOT WARRANT THAT THE PRODUCT IS ERROR FREE. TO THE MAXIMUM EXTENT AT LAW, ATS DISCLAIMS ALL OTHER CONDITIONS OR WARRANTIES WITH RESPECT TO THE PRODUCT AND ANY ATS SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
- ATS may disclose material (including User Data) to third party providers for the purpose of providing the Licensee with the Product. The Licensee acknowledges and agrees that it will not hold ATS responsible or liable for any act or omission of any third party provider.
- Each part of this EULA shall be severable from the other and if for any reason any part is invalid or unenforceable such invalidity or unenforceability shall not prejudice or in any way effect the validity or enforceability of any other part;
- this EULA is subject to and shall be construed in accordance with the laws of Queensland and ATS and the Licensee submit to the non-exclusive jurisdiction of the courts of Queensland;
- any waiver of any of ATS's rights under the EULA is not effective unless in writing and signed by a duly authorised representative of ATS. Any failure or delay by ATS in exercising a right under this EULA does not constitute a waiver of rights. Any valid waiver by ATS will only waive those particular rights in the particular circumstances and will not waive any other rights, or the same rights in other circumstances; and
- this EULA constitutes the complete agreement between ATS and the Licensee with respect to the use of the Product and supersedes all prior oral or written representations, understandings, communications or agreements not specifically incorporated in this EULA. This EULA may not be modified except in writing duly signed by the authorised representatives of ATS and the Licensee.
- Inspection of Records and Audit. ATS has the right on reasonable notice in writing to inspect the business premises of the Licensee to ensure that the Product is being used for the Purpose and in accordance with the terms and conditions of this EULA and the Licensee must give ATS or its representatives full access to relevant parts of its business, records and computer system to allow it to inspect and audit the Licensee’s use of the Product.
- Execution of Further Documents. The Licensee agrees to take all steps and execute any documents necessary to give effect to the terms of this EULA and the transactions contemplated by it.
- Effect of this EULA and Priority. If after the Licensee has agreed to be bound by the terms of this EULA, the Licensee forwards a purchase order with terms and conditions of purchase purporting to bind ATS and displacing any prior terms and conditions relating to the purchase of the Product and this EULA, the Licensee confirms and agrees that this EULA will be the only terms and conditions that regulate the purchase and use of the Product and the terms and conditions of the EULA will prevail.
- FlareHR Usage. In using the Flare platform, you agree to be bound by the relevant platform terms as set out in the below URL: https://www.flarehr.com/platform-terms/
Revised as at 29.11.2022