Live Publish License Agreement 2017-10-06T08:58:40+08:00

Terms and Conditions

Qualitem Pty Ltd (ACN 165 507 951 (Qualitem)
is in the business of providing customers with software solutions (Software).  The Customer (accepting this agreement)
wishes to use (not own) Qualitem software (described below) and agrees to the
following Terms and Conditions contained in this Live Publish License Agreement
(Agreement). 

 

These Terms and Conditions may be varied by Qualitem at any time at
its discretion.  Where these Terms and
Conditions are modified, Qualitem will notify the Customer by email or by
posting a notification on its website (http://qualitem.com) and any changes
will be effective immediately upon notice or upon such other time as the
Customer is notified by Qualitem.  By
accessing and continuing to use any of the Software the Customer agrees that the
Customer has read and understood these Terms and Conditions and any
modifications to the Terms and Conditions as and when they occur.

 

1.
DEFINITIONS

 

In this
Agreement, certain words with the first letter in capitals have a particular
meaning. The meaning of these defined terms can be found where the words appear
in a bold, italic font.

 

Terms and
words stated in the singular shall be deemed of the same importance and having
the same definition as such terms and words stated in plural.

 

Account                                  means
the Customer’s account with Qualitem, which enables the Customer to access the
Software under this Agreement;

Account Details                  means the
Customer ID, User ID, Password and any other details managed by Qualitem to the
Customer in relation to the Customer’s Account;

Additional Agreements   means any
other agreement that the Customer may be required to enter into in order to
access any of the Services, including any end‑user licence agreements with
respect to Third Party Software);

Agreement                            means
this Live Publish License Agreement;

Authorised User                 means
the Customer, its employees, contractors or other personnel who are authorised by
the Customer to access and use the Services using the Customer’s Account;

Business Day                        means a weekday on which trading banks (as
defined in the Banking Act 1959
(Cth)) are open in Perth, Western Australia;

Commencement Date      means the date the Customer trial registration
is processed;

Confidential                         means any confidential or commercially sensitive or valuable

Information                         information,
including:

(a)
all information treated as
confidential whether marked as “Confidential” or not;

(b)
trade secrets, confidential
know how, operations manuals, price lists, customer lists, customer information,
operational methods, operational procedures, advertising, technical and
financial information, except information:

(i)
created independently of either
Party; or

(ii)
that is public knowledge
(otherwise than as a result of a disclosure in breach of this Agreement);

Customer                               means the Party accepting this agreement on behalf of its employees,
contractors or other personnel who are authorised by the Customer to access and
use the Software outlined in this agreement;

Customer Data                    is described in clause 5.1;

Fees and Charges               means
all Fees and Charges payable under this Agreement set out in Schedule 2;

Intellectual Property        includes without
limitation:

·
copyright (including future
copyright) throughout the world in all literary works, artistic works, computer
software, and any other works or subject matter in which copyright subsists and
may in the future subsist;

·
confidential information and
trade secrets; and

·
trade and service marks
(whether registered or unregistered);

Intellectual Property        means
such rights as may subsist in the Intellectual Property;

Rights or IPR

Media                                     means
any CD, tape, USB stick, disk or other electronic media required for the
installation of the Software;

Minimum Technical          means
the minimum computer, operating system, web browser

Specifications                      and any other technical requirements for using the Software as
published or notified to the Customer by Qualitem from time to time;

Password                              is
the unique system generated log-in password either given to the Customer by Qualitem
or specified by the Customer to access the Services or as changed by the
Customer;

Period                                     is specified in
Schedule 1;

Privacy Policy                      means Qualitem’s
policy and guidelines on managing the private information of the Customer
annexed to this Agreement;

Registration Procedure   is described
in clause
2;

SLA or Service Level           is
a separate agreement for the provision of support services

Agreement                            which
are ancillary to the Customer’s use and access to the Services;

Software                                means the software provided by Qualitem to the Customer specified in
Schedule 2 and as modified by Qualitem from time to time;

Term                                        means the term of this Agreement as described in clause 10;

Third Party Developer      means the
owner of the Third Party Software or any party which has represented to Qualitem
that it has the rights to grant the licences and sub-licenses to the Third
Party Software as contemplated under this Agreement;

Third Party Software        means the Third Party
Software listed in Schedule 2;

User ID                                    is
the unique system generated log-in name either given to the Customer by us or
specified by the Customer to access the Services or as changed by the Customer;

Website                                 means the Qualitem website at: http://qualitem.com.

 

2.
REGISTRATION PROCEDURE
& CUSTOMER ACCOUNT

2.1
Subject to the execution of
this Agreement, the Customer will be granted access to the Software upon
completing the Registration Procedure for the Term and in accordance with the Terms
and Conditions of this Agreement.

 

2.2
Registration Procedure

The Customer will be
deemed to have completed the registration procedure by login on the the Software’s
registration process.  A confirmation
email will be sent to the Customer on successful registration and providing any
and all information reasonably requested by Qualitem in setting up the
Customer’s Account (Registration Procedure).

 

2.3
When completing the
Registration Procedure, the Customer warrants to Qualitem that it will provide accurate
and correct information about the Company and its Authorised Users and agrees
to update its information as and when it changes to ensure that Qualitem’s
records and database remains current and accurate.

 

2.4
Where the Customer provides any
false or incorrect information in relation to its Account (including any false
or out-dated information in relation to its name, contact number or email
address), Qualitem reserves all rights to refuse access to, suspend or
terminate the Account and the Software.

 

2.5
Account Access

Upon completing the Registration
Procedure, the Customer may access the Software by logging in to its Account
with its allocated Account Details which will be allocated to the Customer by Qualitem
shortly after the Customer has completed the Registration Procedure and the
Customer will be notified by email as to when the account is active.

 

2.6
The Customer must ensure that
it does not disclose its Account Details to anyone other than its Authorised
Users, representatives or agents. 

 

2.7
While Qualitem uses reasonable
commercial endeavours to maintain the privacy and secrecy of all user IDs and
Passwords, the Customer acknowledges and accepts that:

(a)
it is the Customer’s sole
responsibility to ensure that there is no unauthorised access to its Account or
the Service;

(b)
Qualitem is not responsible for
any loss or damage caused to the Customer as a result of unauthorised access to
its Account.

Where the Customer
suspects any unauthorised use of its Account, the Customer should notify Qualitem
immediately.

 

 

 

 

 

3.
CUSTOMER’S OBLIGATIONS

3.1
In consideration for the Software by Qualitem, the Customer agrees to pay
all Fees and Charges in full and without deduction as and when they become due
under this Agreement.

 

3.2
The Customer agrees that it bears sole responsibility for providing and
maintaining any computer systems, networks, telecommunications systems,
Internet access, third party services or any other materials or conditions
required in order to meet the Minimum Technical Requirements specified by Qualitem
in order to operate the Software or use the Services as disclosed in the
Documentation.  

 

3.3
The Customer agrees that in accessing and using the Software, the
Customer:

(a)
and its Authorised Users will comply
with any and all laws and regulations relevant to the use of the Services;

(b)
and its Authorised Users will
not use the Services in a way which compromises the functionality or use of the
Services as described in clause
5.4;

(c)
and its Authorised Users will
not operate any software on Qualitem Servers that would in any way brings Qualitem’s
reputation into disrepute;

(d)
and its Authorised Users will
not use the Software for any purpose other than as permitted under this
Agreement or for any illegal purposes; and

(e)
has or will provide full and
accurate registration information at the time of completing the Registration
Procedure.

 

3.4
The Customer acknowledges and agrees that it shall be responsible for all
acts and omissions of Authorised Users, and any act or omission by an
Authorised User, which, if undertaken by the Customer, would constitute a
breach of this Agreement, shall be deemed a breach of this Agreement by the
Customer.   The Customer shall undertake reasonable
efforts to make all Authorised Users aware of the provisions of this Agreement
as applicable to such Authorised Users’ use and access to the Services and Software,
and shall use its best efforts to cause Authorised Users to comply with such
provisions.

 

4.
SOFTWARE AS A SERVICE (SaaS)

4.1
From the Commencement Date, Qualitem
will:

(a)
use reasonable commercial
endeavours to provide the Customer with access to the Software through Internet
connection to the Qualitem Server(s) through the Customer’s Account twenty-four
(24) hours a day, seven (7) days a week; and

(b)
grant the Customer a  non-exclusive, non-transferable, non-sub-licensable
license to:

(i)
use and install, up to the number of Permitted
Users/Permitted Sites (as applicable) specified in Schedule 2, copies of the
Software for the Term onto computer server(s) owned, operated and under the
supervision and control of the Customer and hosted by Qualitem on a Qualitem
Server.  The Customer may only access the
Software as hosted on a Qualitem Server and must not install the Software (or
any part thereof) on any privately owned Customer equipment; and

(ii)
permit its Authorised Users to use the
Software in accordance with this Agreement, Additional Agreements and any
Documentation, solely to manage the Customer Data and for purposes of
conducting its business activities,

within Australia, throughout the Term of this
Agreement.

 

4.2
Within a reasonable time period following
the Registration Procedure, Qualitem will, on a date agreed by the Parties, provide
the Customer with
any Media required to install, run
and operate the Software and reasonable assistance to install the Software onto
the Customer’s computing system.  Qualitem
may require that the Customer pay an additional charge for any installation
services, calculated in accordance with Qualitem’s standard hourly rates and
charges.

 

4.3
Third Party Software

The Customer acknowledges and accepts
that in relation to the Third Party Software supplied by Qualitem:

(a)
the Third Party Software is not
owned, developed, maintained or supported by Qualitem;

(b)
Qualitem is permitted, under a
separate licence arrangement with the Third Party Developer, to grant a
sub-licence or otherwise permit the Customer to access and use the Third Party
Software in accordance with this Agreement.
Accordingly, the Customer accepts that:

(i)
the Customer may be required to
execute Additional Agreements in order to access the Third Party Software;

(ii)
the Customer must only use the
Third Party Software in strict accordance with this Agreement and any
Documentation provided with the Software;

(iii)
Qualitem does not make any
representations or provide any warranties in relation to any Third Party
Software upgrades, updates, modifications or continuity except those which are
expressly stated in this Agreement and any Additional Agreements.  Any and all warranties made in relation to
Third Party Software are made by the Third Party Developer;

(c)
the Third Party Software is
provided by Qualitem on an ‘as-is’ basis.
Any upgrades, updates and modifications are provided by the Third Party
Developer at its discretion as and when they are released by the Third Party
Developer.

 

4.4
Qualitem expressly disclaims any and all representations and warranties
of non-infringement, express or implied, regarding Third Party Software.  For avoidance of doubt, the Customer agrees
that Qualitem has no obligation to provide indemnification against any claims
brought against the Customer by third parties alleging that any Third Party
Software infringes, misappropriates, or otherwise violates the intellectual
property rights or similar rights or any third party.

 

4.5
Customer’s Use of the Software

In
accessing and using the Software, the Customer
undertakes to:

(a)
access and use (and ensure that
its Authorised Users access and use) the Software in accordance with this
Agreement and any Additional Agreements and Documentation;

(b)
maintain accurate and up to
date records of the number and locations of all copies of the Software; and

(c)
supervise and control the use
of the Software in accordance with the terms of this Licence.

 

4.6
Excluded Use

The
Customer must not at any time during or after the Term, directly or indirectly,
do or attempt to do any of the following acts:

(a)
translate or adapt the Software
for any purpose without Qualitem’s prior express written consent;

(b)
make any copy of the Software
or Documentation without Qualitem’s prior express written consent;

(c)
provide or otherwise make available
the Software in whole or in part (including but not limited to program
listings, object and source program listings, object code and source code), in
any form to any person other than its Authorised Users without prior written
consent of Qualitem;

(d)
decompile, disassemble, reverse
engineer (or any similar activity) the Software or an part thereof;

(e)
infringe Qualitem’s IPR or the
IPR of any Third Party Developer or third party (including but not limited to
decompiling, reverse engineering or reproducing any content, information or
portion of the Software) or any other unlawful purpose; or

(f)
anything contrary to any other
restrictions stated in this Agreement.

 

4.7
Except as expressly permitted
by Qualitem under this Agreement, the Customer hereby undertakes not to alter
or modify the whole or any part of the Software in any way whatever nor permit
the whole or any part of the Software to be combined with or become
incorporated in any other program except to the extent permitted by law.

 

5.
CUSTOMER DATA

5.1
During the Term of both the
trial and purchase, the Customer may upload and save electronic information,
data, material and other Electronic Assets (Customer Data) through an
Internet connection onto its Account on:

(a)
Qualitem Server located at the Qualitem
Data Centre; and

(b)
Qualitem’s Virtual Servers and
Virtual Data Centres (if applicable),

as described in this Agreement.

 

5.2
Data Allowance

During the trial,
Qualitem will;

(a)
at its discretion, decide how
much Customer Data is stored on the Qualitem Server and may remove Customer data
at any time, without notice.

throughout the Term.

 

5.3
Uploading Customer Data

The Customer warrants that in relation to uploading any Customer Data,
the Customer and its Authorised Users:

(a)
have all the necessary licences and rights to use any content including
images, photos and videos on the Customer’s behalf by Qualitem; and

(b)
own and or otherwise have the
right to store, access and maintain Customer Data hosted on the Qualitem Servers.

 

5.4
The Customer and its Authorised Users must not:

(a)
upload, store or transmit any Customer
Data onto the Qualitem Server(s) or Services which contain any virus or which may
compromise the functionality or use of the Qualitem Server(s) or Services, including
uploading or transmitting any Customer Data which may damage or corrupt the Qualitem
Server(s) or Services; or

(b)
use the Qualitem Server or Services
in any way for any illegal or improper purposes (as determined by Qualitem in
its entire discretion).

 

5.5
The Customer acknowledges and agrees that Qualitem reserves the right to
require Customers to remove any Customer Data or Electronic Asset that may
adversely affect the interests of Qualitem or other Qualitem customers.  The Customer agrees that such content must be
removed by Customers within twenty-four (24) hours of having been so advised by
Qualitem.

 

5.6
Transfers of the Customer
Data

(a)
Qualitem maintains strict
procedures and standards and takes all reasonable care to prevent unauthorised
access to, transfer, and modification and disclosure of, the Customer Data.  Qualitem will take all reasonable steps to
protect the Customer Data from misuse and loss.

(b)
Qualitem will take all
reasonable steps to secure any of the Customer Data that is transferred between
the Customer and Qualitem Server(s) but as it is commonly acknowledged, no information
transmission over the Internet can be guaranteed as fully secure and
accordingly, Qualitem cannot guarantee or warrant the security of any
information the Customer sends to Qualitem through the Internet or uploaded onto
the Qualitem Server.  The Customer acknowledges
and agrees that it submits Customer Data over the Internet and into the Qualitem
Server at the Customer’s own risk.

 

5.7
The Customer acknowledges and
agrees that Qualitem has recommended that the Customer maintains their own
offsite, private back-up copies of their Customer Data.  The Customer acknowledges and agrees that Qualitem
will not be responsible for any loss of the Customer Data as a result of the
Customer’s use of these Services, including uploading or storing its Customer
Data on Qualitem Server(s).

 

6.
TECHNICAL SUPPORT

6.1
Where Qualitem is or becomes
aware of any pending interruptions to access to any of the Services, including
the Software, Qualitem will notify the Customer within twenty-four (24) hours
of the pending interruption and the steps it will take to minimise any impact
it may have on the Customer.  Qualitem will
use reasonable commercial endeavours to minimise any infrastructure, hardware
or software maintenance or development interruptions to the Customer.