End User Licence Agreement

This end user licence agreement (Agreement) is a legal agreement between you and Element Advisory Pty Ltd ACN 097 273 222 (Element, our, we or us) for the use of our cloud based data management software known as "Charter" (Platform). By using all or any portion of the Platform, you agree to be bound by the terms of this Agreement and you consent to your personal information being handled in accordance with our privacy policy as published at www.elementadvisory.com.au/privacy from time to time.

If you do not agree to the terms of this Agreement, you must immediately cease using the Platform.

1               Restrictions

1.1           You must not:

(a)            license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or any data and other content accessible using the Platform including the database structures but excluding your data (Element Content) in any way;

(b)            modify or make derivative works based upon the Platform or the Element Content;

(c)            create Internet "links" to the Platform or "frame" or "mirror" any Element Content on any other server or wireless or Internet-based device; or

(d)            attempt to decipher, decompile, disassemble or reverse engineer the Platform or access the Platform in order to:

(i)             build a competitive product;

(ii)            build a product using similar ideas, features, functions, graphics or database structures of the Platform; or

(iii)           copy any ideas, features, functions, graphics or database structures of the Platform.

1.2           You may use the Platform only for the internal business purposes of our licensee, and in accordance with the terms of our licence agreement with our licensee, and must not:

(a)            violate any applicable laws;

(b)            send or store infringing, obscene, threatening or otherwise unlawful material, including material harmful to children or violative of third party intellectual property, confidentiality or privacy rights;

(c)            send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

(d)            impersonate another person, account or entity;

(e)            interfere with or disrupt the integrity or performance of the Platform or the Element Content;

(f)             attempt to gain unauthorised access to the Platform or its related systems or networks or attempt to circumvent any technological measure implemented to protect the Platform; or

(g)            use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other Element Content from or other interact with the Platform or the Element Content for any purpose.

1.3           You must comply with any acceptable use policies that we inform you of that apply to the Platform and any other lawful directions that we provide to you regarding your use of the Platform.

1.4           You acknowledge and agree that we may suspend or terminate your access to the Platform if you breach this Agreement or for any other reason at our discretion, without providing you with prior notice.

2               Intellectual property rights

2.1           Copyright and all other intellectual property rights subsisting in or in relation to the Platform or the Element Content is owned or licensed by us. 

2.2           You agree that you will not change or delete any intellectual property rights ownership notices from any Element Content or other materials accessible via the Platform.

3               Exclusion of implied warranties

3.1           Any condition, warranty, representation or other term concerning the supply of the Platform or the Element Content which might otherwise be implied, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law. However, nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation (including the Competition and Consumer Act 2010 (Cth)) which cannot be lawfully excluded or limited.

3.2           We expressly disclaim all warranties or guarantees of any kind with respect to the Platform and the Element Content, whether express, implied, statutory or arising out of the course of performance, course of dealing or usage of trade including any warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement. Where such warranty or guarantee is implied or imposed by law despite this clause, your remedy is limited to, at our sole discretion, rectification or replacement of the Platform or payment of an amount equal to the amount paid for your access to the Platform.

3.3           We do not warrant that the Platform is error free, will not damage or interfere with your computer operating system and will not damage or interfere with your business or the business of third parties.  We do not warrant or represent that your access to the Platform will be uninterrupted, timely or secure.

4               Our liability

4.1           You access, use and rely upon the Platform and the Element Content at your own risk.

4.2           We have no responsibility or liability for the accuracy, quality, integrity, legality, reliability, appropriateness or right to use any data that you upload to the Platform, and we will not be responsible for or liable to you for the deletion, correction, destruction, damage, loss or failure to store any such data.

4.3           We are not liable (whether in contract or tort) for:

(a)            any computer virus or bug that infects your computer operating systems;

(b)            anything you may do to a third party as a result of using the Platform or the Element Content; or

(c)            any loss or damage however arising out of your use or reliance on the Platform or the Element Content including:

(i)             any loss of profits, business, contracts, anticipated savings, goodwill, or revenue;

(ii)            any loss, or corruption, of software or data;

(iii)           any loss or use of hardware, software or data; or

(iv)           any indirect, special or consequential loss or damage whatsoever,

even if we have been advised in advance of the possibility of such loss or damage.

4.4           You acknowledge and agree that:

(a)            the Platform and the Element Content has not been developed to meet your individual requirements; and

(b)            it is your responsibility to ensure that the facilities and functions of the Platform and the Element Content meet your requirements.

5               Your liability

You must indemnify us and our related bodies corporate and associates, jointly and severally, against any claim or proceeding that is made, threatened or commenced and against any liability, loss, damage or expense (including legal costs on a full indemnity basis) suffered or incurred as a direct or indirect result of your breach of this Agreement, or any wilful, unlawful or negligent act or omission by you.

6               Transfer of rights and obligations

We may transfer or assign our rights or obligations arising under this Agreement. You agree to take all steps necessary to enable us to transfer or novate this Agreement.

7               Waiver

7.1           Our failure to insist upon strict performance of any of your obligations under this Agreement, or exercise any of the rights or remedies to which we are entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

7.2           Our waiver of any default shall not constitute a waiver of any subsequent default.

7.3           Our waiver of any of these terms and conditions shall not be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

8               Severability

If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

9               Entire agreement

This agreement constitutes the whole of the agreement between us. You agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this agreement.

10            Law and jurisdiction

10.1        Where you may have a dispute or claim against us, you agree that the Agreement shall be interpreted in accordance with laws of Western Australia and you submit to the exclusive jurisdiction of the courts of Western Australia.