Last updated August 2020

XY Sense Terms of Use

1. BACKGROUND

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”).

2. ACCEPTANCE OF TERMS OF USE

By using the Web Platform you agree to be bound by these Terms of Use. If you are agreeing to be bound by these Terms of Use on behalf of an entity, you represent that you have the necessary authority to bind that entity to these Terms of Use.

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.

3. MODIFICATION OF THESE TERMS OF USE

We may modify these Terms of Use or any additional terms that apply to the Web Platform to, for example, reflect changes to the law or changes to our Web Platform. You should look at the terms regularly. We will post notice of modifications to these terms on our Web Platform. We will post notice of modified additional terms in the applicable Web Platform. By continuing to use or access the Web Platform after the revisions come into effect, you agree to be bound by the revised terms.

4. RIGHT TO USE

Subject to your compliance with these Terms of Use and the law, we grant you a limited, non-exclusive and revocable licence so that you may access and use this application.

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.

If you breach these Terms of Use we reserve the right to terminate your Account without notice and do not warrant that any user data is recoverable.

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 acknowledge that the grant of the Access Right, and these Terms of Use, do not include any transfer of title or ownership to you of any rights in the Web Platform, Products, and any other Company Content (including any associated intellectual property rights, which include but are not limited to rights of copyright). You further acknowledge that in addition to any other remedies available to the Company under these Terms of Use or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of, the Web Platform, Products, or any other Company Content will entitle the Company to avail itself of any equitable remedies against you which may be available, including but not limited to injunctive relief.

All rights (including but not limited to intellectual property rights) in the Web Platform, Products, and Company Content will remain the property of the Company in all respects, regardless of whether or not such modifications or alterations were authorised by the Company (pursuant to these Terms of Use, or otherwise). Accordingly, all rights (including intellectual property rights) subsisting in any modifications or alterations will vest in the Company immediately upon creation, without the need for any further formality or documentation. You agree to execute (or procure the execution of) any documentation, and perform any other acts, required by the Company to confirm this fact and give effect to this clause, and will if necessary assign to the Company (or procure the assignment of) all rights (including intellectual property rights) arising out of any modifications or alterations to the Web Platform, Products, or Company Content.

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.

8. COOKIES

You acknowledge and agree that the Company may, from time to time, use cookies in connection with the Web Platform, for purposes including but not limited to storing your preferences, to authenticate sessions, to customise material that is made available to you, or to otherwise provide the Services to you. You acknowledge that if you set your computer to block all cookies, you may restrict your access to certain features of the Web Platform.

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.

9.2           Misuse

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.

 

13. CONFIDENTIALITY

You agree that you will keep secret and confidential, and not directly or indirectly disclose, or allow to be disclosed to any third party any commercial aspects of these Terms of Use that are not public knowledge, and any of the confidential information of the Company (Confidential Information), except to the extent necessary for you to properly use the Web Platform or perform your obligations or exercise your rights pursuant to these Terms of Use, unless otherwise expressly authorised in writing by the Company to do so.

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).

On request by the Company, you will immediately return or erase/delete/destroy (at the Company’s option) all Confidential Information in your possession or control. The obligations of confidence under these Terms of Use will continue to apply after expiration or termination of these Terms of Use.

14. TERMINATION

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).

15. SURVIVAL

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.

17. DISPUTES

17.1        Process

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.

17.2        Rules

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.

 

18. GENERAL

You agree that these Terms of Use constitutes the entire agreement between you and the Company regarding your access and use of the Services, Web Platform, and Company Content.

You acknowledge the right of the Company to take action against you to prevent a breach of these Terms of Use and further acknowledge that damages may not be an appropriate remedy in those circumstances. You also acknowledge that the failure of the Company to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.

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.

Every provision of these Terms of Use is independent of the other. Any provision which is prohibited or unenforceable in any jurisdiction will be ineffective to the extent only of such prohibition or unenforceability, and the other provisions will continue in full force and effect.

You agree that you will do all things necessary to give full effect to these Terms of Use and any transactions contemplated by them.

These Terms of Use were last updated on Friday, 28 August 2020 by Merton Lawyers of 1/26 Liddiard Street Hawthorn Vic 3122.

Where can you get further information?

If you have any questions, please contact your nominated XY Sense representative or email us at privacy@xysense.com.

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