1.1 The terms of this document ("EULA") govern the relationship between the licensee (you) and Instantemp Pty Ltd ABN 26 670 421 066 ("ITPL", "we", "us") in respect of your use of the App and the Services.
1.2 If a person (individual) installs this App on a IT Customer's device for use by the IT Customer and its staff
( a ) a binding contract is formed between the IT Customer and ITPL on the terms and conditions of this EULA;
( b ) the individual warrants that they have legal authority to bind the IT Customer to the terms and conditions in this EULA; and
( c ) references to "you" in this EULA shall be construed as a reference to both the IT Customer and each of the IT Customer's staff who the IT Customer authorises to access and use the App on that device, unless the context indicates otherwise.
1.3 If a person (individual) downloads and install this App on the individual's personal device for use in accordance with that person's job or role with a IT Customer, references to "you" in this EULA shall be construed as a reference to that individual.
1.4 If a person (individual) works for a IT Customer and the IT Customer registers an account for that individual to use the App in that individual's job or role:
( a ) the IT Customer and ITPL will each take all reasonable steps to notify the individual of the terms and conditions of this EULA; and
( b ) a binding contract will be formed between that individual and ITPL on the terms and conditions of this EULA upon that individual's first use of the App, and references to "you" in this EULA will be construed as a reference to that individual for the purposes of that contract.
1.5 By installing, using or accessing the App or the Services, you agree to be bound by the terms of this EULA. If you do not agree with or otherwise do not wish to accept the EULA, do not install, use or access the App and/or the Services.
1.6 ITPL reserves the right to amend the EULA from time to time. We will notify you of such changes (this notice may be sent by email to the email address you have registered with us). The amendments will be effective 14 days after notification (effective date), unless ITPL is required to make the amendments effective earlier to comply with any Law (in which case the effective date will be the date of notification). If you do not agree to any amendments to the EULA, you may terminate this EULA in accordance with clause 11( c ). By accessing and using the App or Services after the effective date, you agree to be bound by the amended EULA on and from the effective date.
In the EULA:
means:
( a ) an event which renders a party (the "affected party") unable to carry out the whole or any part of this EULA for any reason beyond its control including (but not limited to) acts of God, natural disasters, epidemics, acts of governments or governmental authorities, strikes or riots, acts of war or terrorism, third party network or telecommunications failures, cyber security attacks inability of suppliers to deliver or provide products or services that occurs without fault on the part of the affected party and any other causes of like nature; and/or
( b ) any delay or failure by a third-party service provider of ITPL to provide goods and services to ITPL which renders ITPL unable to carry out the whole or any part of this EULA, including any failure of ITPL's hosting, technology, and telecommunications service providers.
means:
( a ) any suggested amendments or improvements to the App that you submit to us; or
( b ) any modifications, alterations or enhancements that you make to the App in any way.
Subject to the terms of this EULA, ITPL grants you a non-exclusive, non-transferable licence to:
( a ) use the App on a single Device as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (which can be viewed at https://www.apple.com/legal/internet-services/itunes/au/terms.html), or such greater number of Devices as is provided for in Apple's Usage Rules or permitted under Apple Family Sharing or volume purchasing, if the App was acquired from the Apple App Store; or
( b ) use the App on a single Device, in all other cases.
Subject to clause 11, the licence granted to you in clauses 3.1 is granted for the duration you have the App installed on the relevant Device.
( a ) The App may only be used to manage temperature activities at Business Locations, and only if the relevant IT Customers hold current IT Subscriptions for those Business Locations. You must not use (or attempt to use) the App in a manner that circumvents or contravenes this restriction.
( b ) You must not rent, lease, lend, sell, transfer, redistribute or sublicense the App. If you sell or otherwise dispose of, transfer or assign any Devices containing the App, any copies of the App must be removed before doing so.
( c ) Other than as expressly provided in this EULA or otherwise permitted by Law, you must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, or any part thereof.
ITPL and its licensors retain all right, title and interest to all Intellectual Property Rights subsisting in the App, any Updates, and any part thereof.
The EULA governs any Updates, unless such an Update is accompanied by a separate licence supplied by ITPL, in which case the terms of that licence will govern to the extent provided for.
You acknowledge and agree that ITPL:
( a ) is under no obligation to provide any Updates;
( b ) can offer optional paid Updates;
( c ) can use Updates to add, remove, modify or otherwise alter features of the App at its sole discretion;
( d ) can require you to install Updates to the App in order to continue using the Services; and
( e ) can provide Updates in such a manner that the App is unable to be reverted to its previous state.
( a ) Services provided through the App include:
(i) Temperature Control record keeping and management, including corrective actions
(ii) Reporting capabilities
(iii) Live temperature readings of food storage units and alerts/ notifications with readings out of the pre-set ranges.
( b ) ITPL can modify or cease to offer the Services, or any part thereof, at any time without prior notice to you.
( a ) You acknowledge and agree that you use the App and the Services at your own risk.
( b ) Some features of the App require you to be connected to the internet and may not function correctly (or at all) if your internet connection is disrupted or lost. You are solely responsible for providing and maintaining your own internet connection when using the App.
( c ) If you configure the App to send you alerts, updates or other messages via SMS or email, you acknowledge and agree that these messages rely on third-party services that may be affected by technical problems, telecommunications network coverage, availability issues and similar factors outside of ITPL's reasonable control, such as unsuccessful or untimely termination of messages on your handset or email account and messages not being received because your mobile phone memory or email account storage is full.
( d ) You:
(i) acknowledge that:
( A ) the App is only a tool to assist with the management of temperature monitoring and procedures;
( B ) the App is not a substitute for you exercising due care and skill (and using your professional judgment) in performing your food safety roles and responsibilities; and
( c ) ITPL does not warrant or guarantee that your use of the App will result in compliance with Laws or applicable Australian and international standards relating to food safety (or any other Laws or standards);
(ii) agree that you are solely responsible for:
( A ) determining the appropriateness and correctness of any food / product safety assessments or decisions that you make when using the App (such as the temperature ranges and timeframes the App to assist you to monitor); and
( B ) promptly checking and independently verifying any reports, alerts, alarms or other outputs produced by the App before acting (or deciding not to act) based on that report, alert, alarm or other output; and
( c ) complying with your responsibilities under all applicable Laws (including any food safety Laws and applicable Australian and international standards) in connection with your use of the App;
(iii) acknowledge that the accuracy of any reports generated through your use of the App rely on the inputs provided by you;
(iv) agree that ITPL is not liable for (and you release us from) any loss, damage or expense suffered by you, any IT Customer or any other person in connection with any reports that are generated utilising the App where:
( A ) you are not qualified, or do not have the necessary experience, to select or measure the inputs;
( B ) you have used the App in a manner other than in accordance with the relevant user guides or support advice provided by ITPL;
( c ) the inputs you provided were incorrect or incomplete;
( D ) you are using templates or checklists accessible within the App and:
(1) you have not utilised the correct or most up to date template or checklist for the relevant activity; or
(2) you have used a template or checklist that has been modified by you or another user of the App, or the template or checklist (or our website) contains a warning that the relevant template or checklist may be out of date; or
( E ) you have failed to independently review and verify the report as required by clause 5.2( d )(ii)( B ); and
(v) agree to promptly notify ITPL of any defects in the IT Platform (including if you believe that any App template or checklist contains an error or is out of date, and not use such template or checklist pending investigation by us); and
(vi) warrant that you will use the App only for lawful purposes and comply with all applicable Laws in your use of the App.
( a ) In order to use the App and/or the Services, or parts thereof, you may need to register on the IT Platform and receive a password / PIN.
( b ) ITPL may require certain personal information about you (including but not limited to your name, email address and role / position) to complete your registration.
( c ) Where applicable, ITPL may obtain certain details about you which are held by your employer or the Provider in order to provide the information we require to complete your registration.
( a ) You are responsible for protecting the confidentiality of your password / PIN.
( b ) You acknowledge and agree that you will be responsible for any activities engaged in using your password / PIN, whether or not access is authorised by you.
( c ) We may require that you change your password / PIN if we suspect the security of your account has been breached.
You must promptly update your details if they change. You will be liable for any unauthorised access or use of your account which results from your failure or delay to notify us of changes to your details.
You acknowledge and agree that:
( a ) the App and/or the Services may feature advertisements from us and/or third parties;
( b ) we may, at its sole discretion, introduce advertising into any App or Services that do not presently contain advertising;
( c ) we are not responsible for the content of any third party advertisements, nor the content of any website or other materials that may be linked to by third party advertisements, and you view such third party websites and materials at your sole risk; and
( d ) any provision of information to third party advertisers by us will be governed by our Privacy Policy (see clause 15).
You warrant and represent that the following statements are true and correct:
( a ) you are not located in a country that is subject to an embargo by the governments of the United States of America or the Commonwealth of Australia or of a country that has been designated by the United States of America or the Commonwealth of Australia as a "terrorist supporting" country; and
( b ) you are not included on any list of prohibited or restricted parties by the governments of the United States of America or the Commonwealth of Australia.
( a ) You may be required to access or use certain third party services or software (for example, a Provider's software marketplace) and be connected to the internet in order to obtain, install, update, access, use, or continue to access or use the App and/or Services (or certain functionality), and you may be required to update such third party services and software from time to time.
( b ) You acknowledge and agree that:
(i) we are not responsible for such third party services, software or updates;
(ii) third party services and software (including any updates) may be subject to fees and separate terms and conditions, which we strongly recommend you review prior to implementing the third party services, software (or any update);
(iii) you must comply with any applicable third party terms and conditions when using the App and/or Services;
(iv) you are responsible for ensuring that your installation and use of the App and/or Services does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties; and
(v) if you are unable or unwilling to obtain, access or install such third party services or software (including any updates), or do not agree to comply with the terms and conditions imposed by such third parties, you may be unable to obtain, install, update, access, use, or continue to access or use features of the App and/or Services that require those third party services or software.
( c ) The App and Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them.
By accessing and using our App and/or Services, you agree that you will:
( a ) provide current, true and accurate information (such as your location) and update us of any information that may be relevant to your use of our App and/or Services;
( b ) read, understand the Documentation and comply with the Documentation and this EULA when using the App; and
( c ) comply with all applicable laws regarding access to and use of the App and Services.
You agree that you will not:
( a ) attempt to disrupt the normal operation of the App or Services, or any infrastructure operated by us, or any of our other business activities;
( b ) attempt to gain unauthorised access to the App and/or the Services;
( c ) make any automated use of the App and/or the Services;
( d ) impersonate any other person in using of the App and/or Services;
( e ) upload or create any information or content which infringes third party rights (including Intellectual Property Rights) or breaches any law; or
( f ) use the App and/or the Services in connection with the actual or attempted contravention of any applicable laws.
If you obtained the App from the Apple App Store or Google Play Store you and ITPL acknowledge and agree that (to the full extent permitted by applicable law):
( a ) this EULA is concluded between you and ITPL only, and not with Apple or Google. ITPL, not Apple or Google, is solely responsible for the App and the content thereof;
( b ) the license granted to you for the App is a non-transferable license to use the App on any Apple or Android-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions or Google Play Terms of Services, except that such App may be accessed and used by other accounts associated with the purchaser via family sharing or volume purchasing;
( c ) Apple or Google have no obligation whatsoever to furnish any maintenance and support services with respect to the App;
( d ) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple or Google, and Apple or Google will refund the purchase price to you. You acknowledge that, to the maximum extent permitted by applicable law, Apple or Google will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will the responsibility of ITPL in accordance with this EULA;
( e ) ITPL, not Apple or Google, is responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including but not limited to:
(i) product liability claims;
(ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; or
(iii) claims arising under consumer protection, privacy or similar legislation including in connection with the App's use (if applicable) of Apple's HealthKit and HomeKit frameworks;
( f ) in the event of any third party claim that the App or possession and/or use of the App by you infringes that third party's Intellectual Property Rights, ITPL, not Apple or Google, will be solely responsible for the investigation, defence, settlement and discharge of any such claim; and
( g ) Apple / Android, and Apple's / Google's subsidiaries, are third party beneficiaries of the EULA and upon your acceptance of this EULA, Apple / Google will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary thereof.
Unless otherwise specified in this EULA or agreed pursuant to a separate written agreement between you and ITPL, ITPL will not be obliged to provide you with support the App or the Service, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the App or the Service by you.
If you are using the App in connection with your work for a IT Customer, this clause 10 does not exclude, restrict or limit any support services that ITPL has agreed to provide to that IT Customer under any agreement between ITPL and that IT Customer.
( a ) This EULA can be immediately terminated by us in the following circumstances:
(i) you are in material breach of any term of this EULA;
(ii) you are in breach of any term of this EULA and you fail to rectify the breach within 7 days of written notice; or
(iii) you become bankrupt, are wound up or become subject to administration or receivership or any similar thing under any law.
( b ) We may terminate the EULA if we decide to withdraw the App from the market (in which case we will endeavour to give you at least 14 days' notice before doing so).
( c ) You may terminate this EULA at any time by deleting the App from your Device.
( d ) Upon termination of this EULA, your licence to the App immediately ends, and you must delete the App from your Device and any remaining copies of the App and any associated documentation or otherwise return or dispose of such material in the manner directed by us.
( e ) Termination pursuant to this clause will not affect any rights or remedies which a party may have otherwise under this EULA or at law.
( f ) We may suspend your access to the App or Services without notice to you where we reasonably believe your access should be suspended, including where:
(i) necessary to comply with any law;
(ii) we believe that there is a risk of fraud or security breach; or
(iii) you have not accessed the App for a period of 6 months or more.
( g ) If we have the right to terminate the EULA pursuant to clause 11( a ), we may, instead of terminating the EULA, immediately suspend your access to the App and/or the Services.
( h ) Nothing in this EULA limits any right we may have pursuant to this EULA to modify the App by way of Update, including by removing or amending any features or functionality from the App, or to modify, suspend or cease offering the Services or any part thereof.
( a ) In this EULA:
(i) "Australian Consumer Law" means schedule 2 of the Competition and Consumer Act 2010 and any equivalent state or territory legislation;
(ii) "Consumer" has the meaning given in the Australian Consumer Law; and
(iii) "Consumer Guarantee" means a right or guarantee under Part 3-2 (Division 1) of the Australian Consumer Law that cannot lawfully be excluded.
( b ) The Australian Consumer Law provides Consumers with Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in this EULA are therefore subject to, and will not apply to the extent that they limit or exclude, any Consumer Guarantees that may apply to you if you are a Consumer. However, where the Australian Consumer Law permits us to limit the remedies for a breach of such Consumer Guarantees we do so in accordance with clause 12.2.
( a ) All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this EULA are excluded other than:
(i) those set out in this EULA; and
(ii) any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by agreement under applicable laws including the Consumer Guarantees under the Australian Consumer Law (Non-excludable Terms).
( b ) Our liability to you in connection with the EULA and the supply of any goods or the Services (including in respect of any breach of or failure to comply with any Non-excludable Terms, where it is permissible under applicable law to limit liability for such Non-excludable Term) is limited to (at our option):
(i) in the case of goods, including the App (to the extent the App is considered a "good" under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you; or
(ii) in the case of services, including the Services – supplying the services again or paying the cost of having the services supplied again.
To the maximum extent permitted by law and without limiting your rights and our obligations under the Australian Consumer Law (which are subject to clauses 12.1 and 12.2), you acknowledge and agree that:
( a ) given the nature of the App, the App and Services cannot be guaranteed to be error free, uninterrupted and available at all times;
( b ) the App and Services (including any information supplied therein) are provided on an "as is" and "as available" basis;
( c ) we will not be liable to you in connection with this EULA for:
(i) any indirect or consequential loss or damage; or
(ii) loss of profits, loss of revenue, loss of opportunity, loss of data or loss of reputation,
that you suffer or incur, whether arising under contract, tort (including due to our or any other person's negligence), under statute or otherwise;
( d ) we do not accept liability for any claims, damages or loss (however arising, including due to our or any other person's negligence) you may incur arising directly or indirectly from:
(i) a failure to provide the App or Service, or any part thereof;
(ii) the incompleteness or inaccuracy of any information that you enter into the App (or any failure by you to enter any information into the App);
(iii) any incompleteness, inaccuracy or unavailability of any information that you access (or are unable to access) through the App;
(iv) corruptions to or loss of data, errors or interruptions occurring in the course of using, or as part of, any Service or the App;
(v) any interference or damage to Devices or your computer systems which arises in connection with use of the App and/or the Services;
(vi) any performance impairments caused by faults with your internet connection, third party telecommunications network failures or other Force Majeure events;
(vii) any suspension or discontinuance of any Service, or any part thereof; or
(viii) any use of the Services by other users, including any use of the Services by other users in manner which contravenes this EULA; and
( e ) our total aggregate liability to you for any loss, damage, liability or expense you suffer or incur in connection with this EULA and which is not excluded under sub-clauses ( a ) to ( d ) inclusive, whether arising under contract, tort (including negligence), under statute or otherwise, is limited to the sum of $100.
You will indemnify ITPL against all liabilities, costs, losses and expenses which ITPL may suffer or incur in connection with any third party claims or allegations against ITPL that are caused by your breach of this EULA. Your obligation to indemnify ITPL under this clause 12.4 will be proportionately reduced to the extent that the claims, actions, demands, losses, fines or payments were caused or contributed to by ITPL or could reasonably have been avoided or mitigated by ITPL once ITPL became aware of the relevant circumstances.
This EULA does not constitute a transfer or conveyance of any Intellectual Property Rights owned by us as at the date of this EULA, including but not limited to all Intellectual Property Rights associated with the App and the Services, and its functionality, features and content, or operate as a future transfer of any Intellectual Property Rights owned by us any time thereafter.
You acknowledge that the App and any materials provided in the course of the Services are protected by copyright and may also be protected as other forms of Intellectual Property Rights owned by us or our licensors. You will not during or at any time after the termination of this EULA undertake or permit any act which infringes or attempts to infringe those Intellectual Property Rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the App except as otherwise expressly authorised by this EULA.
You agree that:
( a ) any Intellectual Property Rights in and to any Improvements are:
(i) owned by and hereby assigned by you to us immediately upon creation free of encumbrances; and
(ii) deemed to form part of the App that is licensed to you under this EULA.
( b ) to the extent any of your pre-existing Intellectual Property Rights are incorporated in any Improvements or are required in order to exploit or use such Improvements, you hereby grant us a non-exclusive, perpetual, transferable, royalty free licence (with the right to sub-licence) such Intellectual Property Rights to the extent required for us to use and exploit the Improvements for any purpose; and
( c ) we, our successors, assigns and any of their licensees may exercise all rights subsisting in the Improvements which are copyright works including but not limited to the right to use, exploit, copy, deal with, communicate, reproduce, transmit, publish, exhibit, publicly perform, alter, adapt and modify such copyright works in any media throughout the world:
(i) with or without attribution of authorship to you;
(ii) bearing our, or any of our successors, assignees, successors or licensees' name; and
(iii) in any manner which would, but for this consent, otherwise infringe any Moral Rights you have in such copyright works.
( a ) To the extent that any Intellectual Property Rights are contained in Your Content, you will retain ownership of such rights, and you hereby grant to ITPL a worldwide, perpetual, irrevocable, royalty-free, transferable and sub-licensable licence to use, exploit and modify Your Content to the extent:
(i) required for ITPL to operate the IT Platform;
(ii) necessary for ITPL to perform its obligations, and exercise its rights, under this EULA; and
(iii) permitted or required by Law.
You warrant that you have the right to grant this licence and to upload Your Content and that our use of Your Content in accordance with this EULA will not breach any third party Intellectual Property rights and privacy rights.
( b ) You further consent to us and our successors, assigns and licensees doing anything in respect of Your Content which would, but for this consent, infringe your moral rights.
( c ) If Your Content contains any personal information relating to any other person, you must comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws when submitting that information to the HS Platform, including by obtaining any consents from (and giving any notices to) that other person which may be required by law.
( a ) Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information and keep your personal information confidential, we do not warrant and cannot ensure the security of any information transmitted to us by you. Accordingly, any information transmitted to us via the App is transmitted at the risk of the sender. Nevertheless, once we receive transmissions from you, we will take reasonable steps to preserve the security and confidentiality of your personal information.
( b ) You must take your own precautions to ensure that the process which you employ for accessing the App and/or the Services does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices or computing systems.
( c ) You must take all reasonable steps to protect the security of your Device, your data and computing systems, including by ensuring you don't have any viruses or other mechanisms capable of recording your passwords or access codes to the App.
( d ) If you suspect that there has been unauthorised access using your password / PIN or there is any other security breach or issue relating to the App, Services or your account, you must notify us immediately (see clause 17 for contact details) and change your password / PIN.
( a ) Use of the App and Services is subject to our Privacy Policy located at [insert link].
( b ) We may collect your personal information via your use of the App, via the Providers and via any IT Customers that you work for. We collect your personal information for the purposes of:
(i) providing and allowing you to access and have the benefit of the Services and the App;
(ii) making your information available via the IT Platform to IT Customers and other IT Users who are authorised to view that information;
(iii) ensuring your use of the App complies with this EULA; and
(iv) communicating with you, including via in App push notifications and electronic messaging such as SMS and email, by mail, by phone or in any other lawful manner,
as well as other purposes that are described in ITPL' Privacy Policy.
( c ) The minimum information we need to provide basic App functionality is your name, contact phone number, email address and a password / PIN. We may also collect the following information:
(i) your post code;
(ii) if you have GPS enabled Device and have this feature turned on, or if you allow us to access your location, we may collect your location information from third party services where you have enabled it and if you request a service that requires your location;
(iii) information about the devices and networks that you use to access the App to help us develop and secure our App and Services (such as information collected via cookies); and
(iv) details of your use of the App and Services.
( d ) We may disclose your personal information:
(i) to IT Customers and other IT Users who are authorised to view information about you through the IT Platform;
(ii) on a confidential basis to our employees, suppliers, contractors, service providers, professional advisers and related entities, in order to run our business, and to provide you with the App functionality and Services you request; and
(iii) to any third parties to whom you have directed or permitted us to disclose your personal information, or where we are permitted or required to do so by law.
( e ) We may make disclosures of your personal information to recipients based overseas, including to our third party contractors based in the United States, United Kingdom, China and India.
( f ) Unless you have previously instructed us otherwise, you consent to your personal information being used to contact you with special offers, news and information about our products, services and promotional offers, including contacting you via electronic messaging. You can opt out of receiving direct marketing communications by contacting us (see clause 17 for contact details).
( g ) If you don't provide the information we request, you may not be able to be registered on the IT Platform, use the App (or certain functionality and features) or be able to utilise the Services.
( h ) Our Privacy Policy contains information about:
(i) how you can seek access to the personal information we hold about you and seek the correction of such information; and
(ii) how you can complain about a privacy breach and how we will deal with such complaints.
( a ) You agree that we may collect and use non-personally identifying data, including but not limited to information about the App, the Services, the Devices and its usage. We may use this information (as long as it is in a form that does not personally identify you) to:
(i) improve our products and services;
(ii) to suggest or provide particular services to you; and/or
(iii) for our external business purposes, including via the provision of reports and services to third parties that are based on or utilise the relevant data.
( b ) We may also use Your Content, including personal information, in a de-identified form (that is, in a form which removes or obscures any personal identifiers so that you are no longer reasonably identifiable) to assist us in running our business, to improve our products and services and to provide reports to third parties (such as statistical reports about products, services and trends).
By entering into this EULA, and each time you access or use the App, you consent to us collecting, using, disclosing and handling your information as set out in our Privacy Policy and this EULA.
( a ) You cannot assign, novate or otherwise transfer any of your rights or obligations under this EULA without our prior written consent (which can be granted or withheld in our absolute discretion). An assignment in breach of this clause is intended by the parties to be void and of no force and effect.
( b ) We can assign, novate or otherwise transfer any of its rights or obligations under this EULA at our sole discretion, on written notice to you. We may subcontract the performance of its obligations under this EULA to any person and without notice to you, but will remain liable to you for the performance of its obligations notwithstanding any such sub-contracting.
A party's rights or remedies under this EULA are not waived by it unless such waiver is in writing and signed by the party granting the waiver. No delay or omission of a party in exercising any rights or remedies shall operate as a waiver of such rights or remedies.
If a provision in this EULA is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this EULA for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this EULA.
The EULA is governed by and is to be construed under the laws in force in Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with the EULA.
You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to the EULA and the transactions contemplated by it.
You acknowledge and agree that you have not relied on any statement by us which has not been expressly included in this EULA.
The EULA constitutes the entire agreement between you and us regarding access and use of the App and Services and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
( a ) Unless expressly required by the terms of this EULA, we are not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this EULA.
( b ) We may (without any requirement to act reasonably) impose conditions on the grant by us of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this EULA. You must comply with any such conditions when relying on the consent, approval or waiver.
Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination of this EULA, clauses 3.3, 3.4, 5.2, 6.2( b ), 8.3, 12, 13, 14, 15, 16.4 and this clause 16.9 survive the termination of the EULA.
Any notice required to be given to you under this EULA may be given by ITPL to you by any legal means, including notification via the App. Any notices required to be given by you to ITPL under this EULA must be sent by mail or email to the contact details set out in clause 17.
In the EULA unless a contrary intention is expressed:
( a ) a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);
( b ) other parts of speech and grammatical forms of a word or phrase defined in the EULA have a corresponding meaning;
( c ) a reference to a party to any document includes that party's successors and permitted assigns;
( d ) a provision of the EULA may not be construed adversely to a party solely on the ground that the party (or that party's representative) was responsible for the preparation of the EULA or the preparation or proposal of that provision;
( e ) the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in the EULA do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary;
( f ) if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;
( g ) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and
( h ) if anything under the EULA is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.
In the event that you need to contact us regarding the EULA, the App and/or the Services, please use the following details.
Instantemp Pty Ltd (ABN 26 670 421 066)
Address: PO BOX 5009, Mildura, Victoria 3502 Australia
Email: info@instantemp.com