Terms and Conditions
This End User License Agreement (EULA) is a legal agreement between you (a single entity) (You) and Predictive Analytics Group Pty Ltd (ABN 83 158 699 480) (PAG) for the use of the AutoStat product that accompanies this EULA, which includes Internet-based services provided by PAG.
BY CLICKING ACCEPT OR BY USING THE PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE, DO NOT USE THE PLATFORM.
1. Definitions and interpretation
In this Agreement, unless the contrary intention appears:
- Agreement means this End User Licence Agreement;
- Business Day means a day that is not a Saturday, or any other day which is a public holiday or a bank holiday in Melbourne, Victoria;
- Commencement Date means the date you accept this Agreement;
- Documentation means any documentation made available with the Platform;
- Fees means all fees and charges payable by You for use of the Platform, as notified from time to time by PAG on its website;
- Further Subscription Term means a period of 12 months commencing on the date of expiry of the previous Subscription Term or Further Subscription Term;
- Intellectual Property Rights means copyright, trade mark, moral rights, confidential information, design, patent, trade, business or company names, or other proprietary rights, or any rights to the registration of those rights and any applications to register those rights (anywhere in the world);
- Platform means the hosted instance of the AutoStat product provided to you via https://www.autostat.pagroup.cloud;
- Platform Provider means the service provider that provides the computing infrastructure (including on a managed services or “as a service” basis) on which the Platform is provided, as determined by PAG from time to time
- SubscriptionTerm means a period of 12 months from the Commencement Date; and
- Update means the updates to the Platform which are made generally available from time to time by PAG to users of the Platform.
In this Agreement:
- reference to the singular includes the plural and the plural includes the singular, a person includes a body corporate and a party includes the party’s executors, administrators, successors and permitted assigns;
- money is to Australian dollars, unless otherwise stated;
- “including” and similar expressions are not words of limitation;
- where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
- headings are for convenience only and do not form part of this Agreement or affect its interpretation;
- a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement;
- if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
- an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly; and
- a party which is a trustee is bound both personally and in its capacity as a trustee.
2.1 Provision of service
- PAG will provide you with the Platform in accordance with this Agreement for the Subscription Term.
- You may choose at any time prior to the end of the Subscription Term to renew the licence for a Further Subscription Term, by paying the applicable Fees.
- You may choose at any time prior to the end of a Further Subscription Term to renew the licence for a Further Subscription Term, by paying the applicable Fees.
2.2 Restrictions on use
- modify, vary, improve, translate or adapt the Platform;
- sub-license, disclose, sell, distribute, publish, transmit or otherwise make available to any third party any part of the Platform;
- permit or allow any other person, apart from Your employees, access (directly or indirectly) to the Platform;
- reverse engineer, disassemble, decompile or otherwise reduce the Platform into any human-readable form;
- use the Platform for hire or rental, timesharing, service bureau or in any other way where a third party may derive benefit from the use of the Platform; or
- continue using the Platform after expiry of the Subscription Term or Further Subscription Term without renewal.
2.3 Authorised under law
Nothing in clause 2.2 prevents You from doing anything that is expressly authorised by law where that authorisation cannot be excluded. Any other rights You may have in relation to the Platform and Documentation are excluded or limited to the fullest extent permitted by law.
2.4 Changes to the Platform
- PAG may (but are not obliged to) make changes to the Platform from time to time (including any Platform Provider), provided that the change does not materially decrease the functionality of the Platform. These changes may include Updates and other changes that are transparent to you. Once incorporated, these changes will form part of the Platform.
- You agree that you entered into this Agreement without relying on any warranty, representation or comments concerning any future functionality or features of the Platform, and that you have not relied on any warranty, representation or comments made by PAG, including any roadmaps, with respect to future functionalities or features of the Platform.
2.5 Your authorised users
- You are solely responsible for any access to or use of the Platform by your authorised users and must ensure that your authorised users comply with this Agreement.
- You acknowledge that any access to or use of the Platform by means of a username assigned you or your authorised users (whether or not such use is in fact by that person) is deemed to be access or use by you.
3. Intellectual Property
3.1 Reservation of rights
The Platform is protected by intellectual property laws. PAG reserves all rights (including Intellectual Property Rights) in relation to the Platform that are not expressly granted to You in this Agreement. You have no proprietary or other interest in the Platform and nothing in this Agreement transfers any right, title or interest in the Platform to You.
3.2 Ownership of modifications and improvements
PAG owns all improvements, adaptations modifications made to the Platform made by or on behalf of You (whether authorised or not) and all related Intellectual Property Rights. You assign any and all the rights that You may have in those improvements and modifications to PAG, and agree to execute all additional documents requested by PAG to give effect to such assignment.
3.3 Third Party software
- You agree and acknowledge that
- third party software and/or open source software may be incorporated, embedded or otherwise included in, or provided in connection with the Platform;
- (b) additional or different terms and conditions may apply with respect to such third party and/or open source software, and
- use of such third party and/or open source software is subject to such additional or different terms and conditions (“Third Party License Terms”) to which You hereby agree.
- The text of any Third Party License Terms are set out in Annexure A to this Agreement
4.1 Exclusion of implied warranties
ALL STATUTORY OR IMPLIED CONDITIONS, GUARANTEES AND WARRANTIES ARE EXCLUDED BY PAG TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT PERMITTED BY LAW, WHERE LIABILITY UNDER ANY CONDITION, GUARANTEE OR WARRANTY CANNOT LEGALLY BE EXCLUDED BUT CAN BE VALIDLY LIMITED, SUCH LIABILITY IS LIMITED TO IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; THE REPAIR OF THE GOODS; THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED AND IN THE CASE OF SERVICES (INCLUDING THE PLATFORM), THE RE-PERFORMANCE OF THE SERVICES OR THE PAYMENT OF the COST OF REPLACING THE SERVICES.
4.2 No other warranties
- TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO CLAUSE 4.1, PAG DISCLAIMS AND EXCLUDES ANY WARRANTY, REPRESENTATION OR UNDERTAKING AS TO THE PURPOSE FOR WHICH THE PLATFORM MAY BE SUITABLE, INCLUDING ANY PURPOSE FOR WHICH YOU INTEND TO USE THE PLATFORM.
- YOU WARRANT TO PAG THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION MADE BY PAG WHICH HAS NOT BEEN STATED EXPRESSLY IN THIS AGREEMENT, OR UPON ANY DESCRIPTIONS OR SPECIFICATIONS CONTAINED IN ANY DOCUMENT INCLUDING BROCHURES, MARKETING AND PROMOTIONAL MATERIALS PRODUCED BY PAG.
4.3 Limited warranty
While PAG has taken due care in developing the Platform, to the extent permitted by law, PAG does not warrant, and excludes all representations and warranties that:
- the Platform is error-free or has no defects;
- access to the Platform will be uninterrupted or error free;
- the Platform is free from viruses, worms or trojans; or
- the Platform meets Your requirements or is compatible with the Your computer system.
4.4 Limitation and exclusion of liability
- DESPITE ANY OTHER PROVISION OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAG IS NOT LIABLE TO YOU UNDER CONTRACT, TORT OR OTHERWISE IN ANY CIRCUMSTANCES FOR ANY INDIRECT, ECONOMIC, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE, OR IN ANY EVENT FOR ANY LOSS OF REVENUE, LOSS OF PRODUCTION, LOSS OF USE, LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS OR LOSS OF DATA.
- NEITHER PAG, NOR ANY OF PAG’S EMPLOYEES, IS LIABLE FOR ANY LOSS OR DAMAGE SUFFERED BY ANY PERSON, INCLUDING YOU AND YOUR EMPLOYEES, IN RELIANCE UPON THE OUTPUTS OF THE PLATFORM, INCLUDING ANY FORECASTS.
- SUBJECT TO CLAUSES 4.1 AND 5.2, AND ANY LAWS THE APPLICATION OF WHICH MAY NOT BE LAWFULLY EXCLUDED, PAG’S AGGREGATE LIABILITY TO YOU ON ANY BASIS AND IN ANY CIRCUMSTANCES (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM OR ITS USE, IN RESPECT OF ALL EVENTS THAT GIVE RISE TO LIABILITY, WILL NOT EXCEED, AND IS EXPRESSLY LIMITED TO, THE TOTAL AMOUNT PAID BY YOU TO PAG IN RESPECT OF THE PLATFORM.
5. IP Indemnity
5.1 Indemnity for third party claims
Subject to clauses 5.2 and 5.3, PAG indemnifies You from and against any and all losses suffered or incurred by You arising out of or in connection with any claim, action or proceedings against You by any third person other than a related body corporate of, or a person associated commercially with, You in connection with the Your use of the Platform, alleging an infringement by the Platform itself of the Intellectual Property Rights of any third party (Third Party Claim), but only to the extent:
- that the losses are awarded by the final judgment of a court of competent jurisdiction; or
- of any settlement pursuant to this clause 5.
5.2 If a Third Party Claim is made then:
- You must notify PAG as soon as practicable;
- PAG may at its own cost conduct the defence of the Third Party Claim in Your name or negotiate any settlement of the Third Party Claim; and
- PAG may elect at its sole discretion to do one or more of the following:
- modify, or arrange for the modification of, the Platform (but without adversely affecting its functionality) to render its use non-infringing;
- at no cost to You, render the relevant activity non-infringing by procuring the right to exercise the relevant Intellectual Property Rights of the relevant person; or
- if PAG is reasonably unable to render the Platform non-infringing, terminate this Agreement, and clause 8.2 will apply.
PAG has no obligation for any claim of infringement arising from:
- Your non-compliance with any instruction, directions or specifications issued by PAG in relation to the Platform; or
- the use of the Platform in a way contrary to this Agreement or the intended use of the Platform.
5.4 Entire liability
Despite any other provision in this Agreement, this clause 5 states the sole remedy of You and entire liability of PAG in relation to any allegations or claims of infringement of Intellectual Property Rights by any person in relation to the Platform or its use.
6.1 Platform and Documentation are confidential
You acknowledge and agree that the Platform is confidential to PAG, and You must not, without the prior written approval of PAG, disclose the Platform (or any copy or part of it) or use it for any purpose other than the purposes of this Agreement or the purposes for which the Platform was made available to You.
You are not in breach of clause 6.1 to the extent that:
- the Platform is or becomes publicly available without breach of this Agreement; or
- You are required by law or any court to disclose the Platform. Before disclosing the Platform under this clause 6.2(2), You must give PAG sufficient prior written notice to enable PAG to seek a protective order or other relief from disclosure.
6.3Steps to avoid disclosure
You must take all reasonable steps to ensure that your officers, employees, agents and contractors do not make public or disclose the Platform in breach of this clause 6.
7. Record keeping, inspection and audit
7.1 Record keeping
You must keep accurate records of the use of the Platform.
7.2 Right to audit
If PAG has reasonable grounds to suspect that You have committed a breach of this Agreement, then PAG may (whether by itself or through an appropriately qualified independent assessor) inspect and access Your records, materials, systems and business premises in order to determine whether there has been a breach of this Agreement.
7.3 Your obligations
You must do all things reasonably required by PAG in exercising its rights under this clause 7.
8. Termination and Expiry
8.1 Termination for breach
PAG may terminate this Agreement immediately if:
- You fail to comply with any material provision of this Agreement and fail to remedy that failure to the satisfaction of PAG within 15 business days after notice requiring it to be remedied; or
- You assign or otherwise dispose of any interest or right You have under this Agreement without the prior written consent of PAG.
8.2 Effect of termination
- Upon termination of this Agreement for any reason:
- unless expressly set out otherwise, PAG is not required to provide You any refund of any paid Fees; and
- all rights granted under this Agreement terminate immediately, and You must immediately cease to use the Platform.
- Clauses 3, 4, 6, 7, 8.2 and 9 survive termination of this Agreement.
9.1 No assignment
You must not transfer, sub-license or assign any benefit or obligation under this Agreement to any third party without the prior written consent of PAG.
PAG may subcontract the performance of any part of its obligations to any person. PAG will remain responsible for the performance of any subcontracted obligations.
9.3 Force majeure
PAG will not be liable for any or failure to perform or delay in performing any obligations under this Agreement to the extent caused by any cause or condition beyond its reasonable control, including fire, flood, act of God, war, insurrection, sabotage, acts of terrorism, industrial disturbance, failure of electrical or telecommunications networks, acts of vandalism and changes in legislation or regulations of any government (Force Majeure Event). The obligations of PAG are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
9.5 Further assurance
Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.
9.6 Entire understanding
This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
9.9 Costs and outlays
Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.
- A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
- In addition to any other method of service provided by law, the Notice may be:
- sent by prepaid post to the address of the addressee;
- sent by email to the addressee; or
- delivered at the address of the addressee.
- If the Notice is sent or delivered in a manner provided by clause 9.10(2), it must be treated as given to and received by the party to which it is addressed:
- if sent by post, on the 5th Business Day (at the address to which it is posted) after posting;
- if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
- if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
- Despite clause 9.10(3)(b):
- an email message is not treated as given or received if within 2 hours after the time sent the sender receives an automated message that the email has not been delivered; and
- an email message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 2 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.
- A Notice sent or delivered in a manner provided by clause 9.10(2) must be treated as validly given to and received by the party to which it is addressed even if:
- the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or
- the Notice is returned unclaimed.
9.11 Governing law and jurisdiction
The law of the State of Victoria governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and of the Commonwealth of Australia.
This Agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. This Agreement is binding on the parties on the exchange of executed counterparts. A copy of an original executed counterpart sent by facsimile machine or by email:
- must be treated as an original counterpart;
- is sufficient evidence of the execution of the original; and
- may be produced in evidence for all purposes in place of the original.
Annexure A – Third Party License Terms
Certain components of the Platform incorporates “Math.NET” open source software. The license is:
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Certain components of the Platform incorporates “LIBSVM” open source software. The licence is:
Copyright (c) 2000-2014 Chih-Chung Chang and Chih-Jen Lin All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. Neither name of copyright holders nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Certain components of the Platform incorporates “Dlib” open source software. The licence is:
Boost Software License - Version 1.0 - August 17th, 2003
Permission is hereby granted, free of charge, to any person or organisation obtaining a copy of the software and accompanying documentation covered by this license (the "Software") to use, reproduce, display, distribute, execute, and transmit the Software, and to prepare derivative works of the Software, and to permit third-parties to whom the Software is furnished to do so, all subject to the following:
The copyright notices in the Software and this entire statement, including the above license grant, this restriction and the following disclaimer, must be included in all copies of the Software, in whole or in part, and all derivative works of the Software, unless such copies or derivative works are solely in the form of machine-executable object code generated by a source language processor.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR ANYONE DISTRIBUTING THE SOFTWARE BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.