End-User licence & conditions of use agreement

The following “User License Agreement” governs your use of the software and services provided by DBK UNIFI Pty. (and its parents, subsidiaries or related companies) (“UNIFI”). This is a legal agreement between you and UNIFI and incorporates the Privacy Policy. By making use of the Service (as defined below), you are accepting to be bound to the terms of this User License Agreement.

1. Definitions

(a) “Administrator” shall mean a Subscriber (as defined in Section 1(i)) with authority to designate additional Authorized Users and/or Administrators.

(b) “Agreement” shall mean this entire User License Agreement and incorporates by reference the Privacy Policy and any attached exhibits.

(c) “Authorized User” shall mean an individual subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.

(d) “Confidential Information” shall mean the Content (as defined in Section 1(e)) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.

(e) “Content” shall mean any information you upload or post to the Service and any information provided by you to UNIFI in connection with the Service, including, without limitation, information about your Authorized Users or Registered Clients, as defined in Section 1(g).

(f) “Originating Subscriber” shall mean the Subscriber who initiated the Services offered by UNIFI and is assumed by UNIFI to have the sole authority to administer the subscription.

(g) “Registered Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized User.

(h) “Service” shall mean any software, services or websites provided by UNIFI.

(i) “Subscriber” shall refer to the purchaser of the Services provided by UNIFI and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.

(j) “Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) UNIFI’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.

2. Limited License & Use of the Service

2.1 Subscriber is granted a non-exclusive, non-transferable, non-assignable, non-sub-licensable limited license to access and use the Service.

2.2 UNIFI does not review Content or pre-screen the contents of electronic data uploaded or posted to the Service and UNIFI claims no intellectual property rights with respect to any Content.

2.3 Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from UNIFI.

2.4 Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, UNIFI, or any other software or service provided by UNIFI.

2.5 Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.

2.6 Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.

2.7 Except for the non-exclusive limited license granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with UNIFI.

2.8 Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). UNIFI reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.

2.9 UNIFI reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Service (or any feature thereof), with or without notice. You agree that UNIFI will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

2.10 UNIFI reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavour to provide no less than two (2) business days’ notice prior to any such suspension. Such notice shall be provided to you in advance by way of notification within the Service, posted on the UNIFI website, email, or other notification method deemed appropriate by UNIFI. Further, UNIFI shall endeavour to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the right to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, UNIFI will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.

2.11 Subscriber grants to UNIFI a non-exclusive, royalty free right during Subscriber’s use of the Service, to use the Confidential Information for the sole purpose of performing UNIFI’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for UNIFI to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1.

2.12. Suggestions, Ideas and Feedback. UNIFI shall have the unrestricted rights to use or act upon any suggestion, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Service to the extent it does not constitute Confidential Information of Subscriber.

3. Access to the Service

3.1 Subscriber is only permitted to access and use the Service if he/she is an Authorized User or a Registered Client. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.

3.2 Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.

3.3 The initial Administrator shall be the Originating Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User. If there is any dispute between an Administrator and an Authorized User regarding access to any organization or Service, the Administrator shall decide what access or level of access to the Service that Authorized User shall have, if any.

3.4 Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.

3.5 As between UNIFI and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. Upon Cancellation or Termination of Service as discussed in Section 9 below, UNIFI shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.

3.6 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.

4. Confidentiality

4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.

4.2 UNIFI and any third party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement; (b) in compliance with Section 6 of this Agreement, or (c) as otherwise authorized by you in writing.

4.3 Upon request, and UNIFI’s sole discretion, UNIFI may choose to provide its source code to any Administrator for the sole purpose of the Administrator conducting a security assessment. Such security assessment shall be conducted pursuant to the terms of a non-disclosure agreement separately agreed to by UNIFI and the Administrator (or their company).

5. Security and Access

5.1 UNIFI is responsible for providing a secure method of authentication and accessing its Service.

5.2 Subscriber will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.

5.3 Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify UNIFI upon suspicion that a username and password has been lost, stolen, compromised, or misused.

5.4 At all times, UNIFI, and any third party vendors and hosting partners it utilizes to provide the Service, will (a) use information security best practices for transmitting and storing your Content, adhering to industry standards; (b) employ information security best practices with respect to network security techniques; and (c) ensure its host facilities maintain industry standards for security and privacy.

5.5 UNIFI shall report to Subscriber, with all relevant details, any event that UNIFI reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). UNIFI shall make such report at a reasonable time after learning of the Security Breach.

5.6 In the event of a Security Breach, UNIFI shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (d) mitigate any harmful effect of the Security Breach.

6. Legal Compliance

6.1 UNIFI maintains that its primary duty is to protect the Content to the extent the law allows. UNIFI reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If UNIFI is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then UNIFI will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, UNIFI may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.

7. Evaluation Period

7.1 In the event that you have licensed the Service for evaluation purposes only, the terms of this paragraph shall apply in addition to all the other terms of this Agreement. Your license to use the Service commences on the creation of an user account and, unless you and UNIFI agree to a different period, terminates automatically thirty (30) days after the date of creation (the “Evaluation Period”). The service will automatically disable itself at the end of the Evaluation Period. You agree that you will not do anything to circumvent or defeat the restriction mechanism, nor open additional user accounts to circumvent the restriction mechanism. Additional product functionality restrictions may apply during the Evaluation Period.

9. Cancellation and Termination

9.1 Administrators are solely responsible for cancelling subscriptions. An Administrator may cancel their subscription at any time by accessing the Service and visiting the cancellation site as applicable. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation URL within the Service. Cancellations shall not be accepted by any other means.

9.2 UNIFI in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.

9.3 If (a) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (b) UNIFI provides Subscriber with commercially reasonable notice of this violation; (c) UNIFI uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (d) despite the foregoing, the violation is not resolved to UNIFI’s reasonable satisfaction within thirty (30) days of such notice, then UNIFI reserves the right to suspend access to the Service.

10. Limitation of Liability

10.1 UNIFI shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Subscriber by UNIFI.

10.2 EXCEPT AS OTHERWISE PROHIBITED BY LAW, SUBSCRIBER AGREES THAT THE LIABILITY OF UNIFI (OR UNIFI’S THIRD PARTY SERVICE PROVIDERS OR LICENSORS) ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED: (I) THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE; OR (II) IF YOU HAVE NOT PAID FOR THE SERVICE THEN R100. SUBSCRIBER FURTHER AGREES THAT UNIFI (OR UNIFI’S THIRD PARTY SERVICE PROVIDERS OR LICENSORS) IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. SUBSCRIBER FURTHER AGREES THAT UNIFI (OR UNIFI’S THIRD PARTY SERVICE PROVIDERS OR LICENSORS) IS NOT AND WILL NOT BE LIABLE (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER UNIFI HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 12.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY UNIFI TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

10.3 Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system or any third party system or technology.

11. Disclaimer of Warranties

11.1 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OR AS REQUIRED BY APPLICABLE LAW, THE SYSTEM IS PROVIDED “AS IS.” UNIFI HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO ANY SERVICES PROVIDED BY UNIFI. UNIFI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, BUG-FREE, OR COMPLETELY SECURE. NOTHING IN THIS SECTION 11.1 SHALL MODIFY UNIFI’S OBLIGATION TO INDEMNIFY SUBSCRIBER AS REQUIRED BY SECTION 12.2(A) OF THIS AGREEMENT (“INDEMNIFICATION”).

11.2 UNIFI makes no warranty that its services when provided to Subscriber in digital or electronic format will be compatible with Subscriber software, computer and/or other equipment, or that these Services will be secure or error free. Nor does UNIFI make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 11.2 shall modify UNIFI’s obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or UNIFI’s obligation to indemnify you as required by Section 12.1(b) of this Agreement (“Indemnification”).

11.3 UNIFI hereby disclaims all warranties of any kind related to Subscriber’s hardware or software beyond the warranties provided by the manufacturer of Subscriber’s hardware or software.

12. Indemnification

12.1 Subscriber hereby agrees to indemnify and hold harmless UNIFI from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following: a. Authorized Users’ breach of any obligation stated in this Agreement, and b. Authorized Users’ negligent acts or omissions.

12.2 UNIFI will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber will undertake, at Subscriber’s own cost, the defence of any claim, suit or proceeding with counsel reasonably acceptable to UNIFI. UNIFI reserves the right to participate in the defence of the claim, suit, or proceeding, at UNIFI’s expense, with counsel of UNIFI’s choosing. Subscriber shall not settle any claim, suit or proceeding unless Subscriber is responsible; any such settlement shall not impose any equitable relief upon UNIFI.