Cloud Assess End User License Agreement
This is a binding agreement between Cloud Assess Pty Ltd ACN 164 642 684 (Licensor) and any person (You) who accesses the Cloud Assess training and assessment management system (Cloud Assess).
Your employer, training provider or another third party that is a customer of Licensor (Client) has entered into an agreement with Licensor in relation to Cloud Assess (Cloud Assess Client Agreement) and the Client has authorised You to access Cloud Assess under the terms of the Cloud Assess Client Agreement.
In consideration of the licence granted to You in respect of the use of Cloud Assess, by clicking on the “Accept” button you are indicating your acceptance of the terms of this licence and accept to be legally bound by it.
Where applicable, your use of Cloud Assess may result in You electing to enter into contracts with third parties or producing electronic records that binds you with third parties.
1. SCOPE OF LICENCE
1.1 Licence grant. The Licensor grants to You a non-exclusive, non-transferable licence to access and use Cloud Assess from the date You accept this agreement until such time as the Cloud Assess Client Agreement (under which You have been provided access to Cloud Assess) expires or is terminated.
1.2 Conditions. You must ensure that You only use Cloud Assess as permitted by this agreement and that You comply with Your obligations under this agreement.
1.3 Restrictions. You must not:
(a) copy, modify, add to, adapt, delete or amend any part of Cloud Assess, including reverse engineer, disassemble, or decompile any software forming part of Cloud Assess;
(b) sell, translate, publish, rent, lease, assign, transfer, loan or otherwise distribute all or part of Cloud Assess, or any adaptation, modification or derivative of all or part of Cloud Assess;
(c) provide Your access codes to any other person; and
(d) use Cloud Assess for any unlawful purpose.
2. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
You agree that all rights, title and interest (including all intellectual property rights) in Cloud Assess vest absolutely in the Licensor (or its third party licensors). The only rights you have in respect of the intellectual property rights to Cloud Assess are those granted under and subject to this agreement.
3. INDEMNITY AND EXCLUSIONS AND LIMITATIONS OF LIABILITY
3.1 Indemnity. You indemnify the Licensor (and all its related bodies corporate and its personnel) and must keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising directly or indirectly out of or in connection with: (a) any unauthorised installation, access, use, copying, reproduction and/or distribution or any portion of Cloud Assess; (b) any software virus introduced by You into Cloud Assess; or (c) any infringement of third party intellectual property rights in respect of any material uploaded by you to Cloud Assess.
3.2 Consumer guarantees. To the extent applicable, if a supply under this agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), then nothing contained in this agreement excludes, restricts or modifies the application of any provision, consumer guarantee, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law; provided that, to the extent the Australian Consumer Law permits the Licensor to limit its liability, then Licensor’s liability is limited to (at Licensor’s option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
3.3 Exclusion of liability. Subject to section 3.2, the Licensor excludes liability for all consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence), under statute or otherwise, that is suffered or incurred by You or any person in connection with this agreement.
3.4 Limitation of liability. To the extent any liability is not excluded pursuant to clause 3.3, Licensor’s total aggregate liability to You in connection with this agreement is limited to AUD10, whether such liability arises in contract, tort (including negligence), under statute or otherwise. The foregoing does not limit any liability Licensor may have to You under clause 3.2.
3.5 Implied Terms. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Licensor are excluded under this agreement.
4. TERM AND TERMINATION
4.1 Term. Subject to clause 1.1, this agreement continues to apply until terminated by You or by the Licensor.
4.2 Your right to terminate. You may terminate this agreement at any time by notifying us in writing.
4.3 Licensor’s right to suspend or terminate access. The Licensor may immediately suspend or terminate Your access to Cloud Assess if You have breached this agreement or infringed Cloud Assess’ intellectual property rights, and Licensor may notify Client it has done so.
4.4 Automatic termination. Your rights automatically and immediately terminate, without the need for notice from Licensor, if you fail to comply with any provision of this agreement or if the Cloud Assess Client Agreement under which you have been provided access to Cloud Assess expires or is terminated.
4.5 On termination of this agreement for any reason, you must immediately and permanently delete the Cloud Assess app from all your devices.
5.1 Governing law. This agreement is governed by the laws of the State of Queensland, Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of that State.
5.2 Assignment. You may not assign Your rights under this agreement, or attempt or purport to do so.
5.3 Representation and warranty. You represent and warrant to Licensor that:
(a) You are not accessing the Cloud Assess system from a country that is subject to a United States Government embargo or a country that has been designated by the United States Government as a ‘terrorist supporting’ country; and
(b) You are not on any United States Government list of prohibited or restricted parties.
6. VARIATION OF TERMS
6.1 Licensor may vary terms. Licensor reserves the right to revise and amend this agreement in its discretion, as follows:
(a) if the Licensor considers that the change is likely to benefit You or have a neutral or minor detrimental impact on You, it may make any changes immediately without notifying You except by publishing the amended agreement (or a link to the amended agreement) on Cloud Assess; or
(b) if Licensor considers that the change is likely to have a significant detrimental impact on You, it will make the change after it has notified You of the change solely by displaying a notice on Cloud Assess describing the change.
6.2 Deemed agreement to variation. Your continued use of the Cloud Assess after an amendment will mean that You agree to that amendment. You must stop using Cloud Assess if you do not agree to an amendment.
(a) Licensor collects certain personal information about You so that You can register for, access and utilise Cloud Assess, and so that Licensor may communicate with You via push notifications within Cloud Assess and via electronic messaging (including email and SMS) in connection with Your use of Cloud Assess. The personal information Licensor collects includes Your email addresses, name, ID numbers, media and other information uploaded by You or the Client, and details of your use of Cloud Assess.
(b) Your personal information may be disclosed to or accessed by: (i) the Client (including details of the use of Cloud Assess and if you are in breach of this agreement); and (ii) Licensor’s staff, service providers (including cloud storage providers), professional advisers and related entities on a confidential basis, to the extent required in order to provide the Client and You with Cloud Assess and its functionality, or where Licensor is permitted or required to do so by law.
(c) Subject to the below, the Licensor does not generally disclose personal information to recipients based outside Australia and utilises cloud service providers in Australia to store data relating to Cloud Assess. The Licensor engages third party service providers (based primarily in the United States) to enable it to send system messages and to contact end users of the Cloud Assess system, including by email. Depending upon how the Client and You utilise Cloud Assess, in limited cases Your personal information may be disclosed outside Australia in notifications made via Cloud Assess (for example, if Licensor sends You notifications when You are travelling outside Australia (e.g. an SMS that You receive), if Licensor sends notifications to Your email address and Your email service provider’s infrastructure is based outside Australia, or if third party service providers utilise overseas data centres and infrastructure to facilitate and send such notifications). Licensor conducts due diligence on its service providers that have access to personal information to ensure they implement appropriate security controls and maintain appropriate security certifications, and to ensure they only use and have access to such information to the extent necessary for Licensor to provide Cloud Assess. You consent to the Licensor disclosing Your personal information (including email address and name) to the Licensor’s service partners to the extent necessary for You and Client to use and have the full benefit of the Cloud Assess system.
(d) If You do not provide any of the information that Licensor requests, Licensor may not be able to set up a Cloud Assess account for You, or permit You to use or access Cloud Assess (or all of its functionality). If You do not wish for Your email address and/or name to be disclosed to the Licensor’s service partners You must not accept these terms and conditions.
(f) The Licensor warrants that any third party service provider engaged by the Licensor will handle personal information relating to the end users of Cloud Assess in compliance with relevant privacy laws, including the Privacy Act 1988 (Cth).
If You download the Cloud Assess software via the Apple Inc (Apple) App Store or otherwise install Cloud Assess on Apple-branded products, the following terms also apply:
(a) Licensor and You acknowledge that the agreement is concluded between You and the Licensor only, and not with Apple, and Licensor, not Apple, is solely responsible for Cloud Assess and the content thereof.
(b) The license granted to You for Cloud Assess is a non-transferable license to use Cloud Assess on any Apple-branded products that You own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that Cloud Assess may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
(c) Licensor is solely responsible for providing any maintenance and support services with respect to Cloud Assess, as specified in the agreement or as required under applicable law. Licensor and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Cloud Assess.
(d) Licensor is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of Cloud Assess to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for Cloud Assess to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Cloud Assess, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Licensor’s sole responsibility.
(e) Licensor and You acknowledge that Licensor, not Apple, is responsible for addressing any claims You or any third party have relating to Cloud Assess or Your possession and/or use of Cloud Assess, including, but not limited to: (i) product liability claims; (ii) any claim that Cloud Assess fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with Cloud Assess’ use of the HealthKit and HomeKit frameworks.
(f) Licensor and You acknowledge that, in the event of any third party claim that Cloud Assess or Your possession and use of Cloud Assess infringes third party’s intellectual property rights, Licensor, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) You must comply with applicable third party terms of agreement when using Cloud Assess.
(h) Licensor and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the agreement, and that, upon Your acceptance of the terms and conditions of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against You as a third party beneficiary thereof.
9. Contact us
The Licensor can be contacted at: Post: Cloud Assess Pty Ltd ACN 164 642 684 Level 1, 21 Harbour Village Parade, Coomera, QLD 4209, Email – firstname.lastname@example.org; Phone – 1300 GO ASSESS.
Last Updated: 11 May 2022
Version: Doc ID 918174803/v3