Last updated August 2020
XYSENSE Pty Ltd (ACN: 615 934 542) (the “Company”) provides a cloud-based platform designed for the access and analysis of workplace sensor data captured through installed XY Sense sensors (the “Services”). This service is provided through a combination of mediums including a Website (Application) located at app.xysense.io and an Application Programming Interface (API) (together the “Web Platform”).
If you are under the age of 18, you must have your parent or guardian’s consent to use the Web Platform. If we are notified that you do not have the permission of your parent or guardian, we hold the right to immediately terminate your access to the Web Platform.
4. RIGHT TO USE
The Company remains the sole owner of all right, title, and interest in the Web Platform. We reserve all rights not granted under these terms.
While you retain all rights and ownership in your content, you hereby grant the Company an unlimited, world-wide, royalty-free, perpetual, exclusive, and irrevocable right to use your content for the purposes of providing the Services, the Web Platform, or for any other purposes including marketing, research, analysis, or otherwise publish your content either by the Company or a third party.
You are responsible for all activity that occurs via your account. Please notify our support desk immediately if you become aware of any unauthorised use of your account.
5. USER GENERATED CONTENT AND USER DATA
User Data means any measurements, data, or otherwise content created by you through the use of the Web Platform.
You shall at all times retain ownership of the User Data including the Intellectual Property Rights subsisting in the User Data.
You agree that your Intellectual Property Rights are not infringed by us providing the Web Platform to you.
You hereby grant us an irrevocable, royalty-free, worldwide, perpetual, transferable, non-exclusive licence to use, communicate, display, copy, reproduce, store, distribute including sell, publish, export, adapt, edit and translate the User Data as non-personally identifiable data in aggregated and blinded formats where the User Data provides no identifying, referencing or implication of an association with the User, for the purposes of display on the Web Platform, benchmarking, research, marketing analysis, analysis by third parties, surveys, reports and studies and to measure any metrics associated with the User’s use of the Web Platform.
6. ACCESS TO THE WEB PLATFORM
Access to the Services and Web Platform is provided once all set up information has been provided to the Company through the signup process contained on the Web Platform.
Once your Account is set up, you will be able to engage in the Services.
7. INTELLECTUAL PROPERTY
You represent and warrant that the information provided by you through your use of the Website does not and will not infringe the rights, including without limitation, the intellectual property rights, of any person or other third party.
The Company may only use the information provided by you through your use of the Web Platform in a way that does not disclose personal information to any third party, where personal information has the meaning given under applicable privacy laws.
9. USER CONDUCT
9.1 Legitimate Purposes Only
The Web Platform must be used for legitimate purposes only. You agree to use the Web Platform in a way which does not abuse it or its functionality, or otherwise restrict or affect the ability of others to access and use the Web Platform.
You must not misuse the Web Platform, or content that we provide to you as part of the Services. For example, you must not:
(a) engage in any activity which, in the opinion of the Company, constitutes bullying, engaging in defamatory, discriminatory or derogatory behaviour, or otherwise could cause any other user of the Web Platform distress;
(b) copy, modify, host, stream, sublicence, or resell the Web Platform, or content;
(c) enable or allow others outside of your organisation to use the Web Platform, or content using your account information;
(d) use the content or Web Platform included in the Services to construct any kind of database;
(e) access or attempt to access the Services by any means other than the interface we provided or authorised;
(f) circumvent any access or use restrictions put into place to prevent certain uses of the Services;
(g) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(h) attempt to disable, impair, or destroy the Services, Web Platform;
(i) disrupt, interfere with, or inhibit any other user from using the Services provided,
(j) use any data mining or similar data gathering and extraction methods in connection with the Services; or
(k) violate applicable law.
10. YOUR INDEMNIFICATION OBLIGATIONS
You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable legal fees, arising out of or related to your content, your use of the Web Platform, or your violation of these terms.
11. DISCLAIMERS OF WARRANTIES
Unless stated in the Additional Terms, the Services and Web Platform are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that:
(a) the Web Platform will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free;
(b) the Web Platform is compliant with the law of the jurisdiction within which you intend to use it;
(c) the results that may be obtained from the use of the Web Platform will be effective, accurate, or reliable;
(d) the quality of the Web Platform will meet your expectations; or that
(e) any errors or defects in the Web Platform will be corrected.
We specifically disclaim any liability for any actions resulting from your use of any Web Platform. You may use and access the Web Platform at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Web Platform.
12. LIMITATION OF LIABILITY
Under no circumstances will the Company be liable to you or anyone else for:
(a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and
(b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those resulting from loss of use, data, or profits, whether or not foreseeable, based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or arising from any other claim arising out of or in connection with your use of or access to the Services or Web Platform.
Our total liability in any matter arising out of or related to these terms is limited to:
(a) $10.00; or if held unenforceable
(b) the aggregate amount that you paid for access to the Web Platform during the three-month period preceding the event giving rise to the liability.
This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.
The limitations and exclusions in this Section apply to the maximum extent permitted by law.
You will inform the Company immediately upon becoming aware or suspecting that an unauthorised person has become aware of any Confidential Information.
You are permitted to disclose Confidential Information to such third parties as are strictly necessary, where you are required by law to do so (provided that you give the Company reasonable advance notice and opportunity to object to the requirement to disclose such information or obtain an appropriate order to protect its Confidential Information), or if the Confidential Information enters the public domain (other than as a result of a breach by you of your obligations under this clause).
14.1 Termination by You
You may stop using the Services at any time.
14.2 Termination by Us
If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content.
Unless stated in Additional Terms, we may at any time terminate these terms (and your access to Services or Web Platform) with you if:
(a) you engage in any conduct which is considered, in the sole discretion of the Company, to negatively impact the rights of any other User of the Web Platform and Services;
(b) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(c) we are required to do so by law (for example, where the provision of the Services or Web Platform to you is, or becomes, unlawful); or
(d) we elect to discontinue the Web Platform, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law).
Upon expiration or termination of these terms, any perpetual licences you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Services, some or all of the Web Platform may cease to operate without prior notice.
16. JURISDICTION AND LAW
The jurisdiction of this agreement is Victoria, Australia. The Web Platform, Services, content, and your use of the Web Platform, Services, and content, are subject to Victorian law and other applicable international laws, restrictions, and regulations that may govern the import, export, and use of the Web Platform, Services, and content. You agree to comply with all the laws, restrictions, and regulations.
For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or the Company must resolve any claims relating to these terms, the Services, or the Web Platform through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.
Arbitration will be carried out in Melbourne, Victoria. An arbitrator will be appointed that you and the Company both agree upon. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over the parties.
17.3 No Class Actions
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
17.4 Injunctive Relief
Notwithstanding the foregoing, in the event of unauthorised access by you or others access or use of the Web Platform, Services or content in violation of these terms you agree that we are entitled to apply for injunctive remedies.
You expressly agree and acknowledge that you are not authorised or permitted to bind the Company in any way whatsoever in relation to any contract or agreement with any third party.
Where can you get further information?
If you have any questions, please contact your nominated XY Sense representative or email us at email@example.com.