Updated April 2020
Welcome to Alcami Interactive (“Alcami" “Us”, “Our”), a next generation digital video platform that specialises in applicant screening, assessments and surveys.
"Access Fee" means the annual fee (excluding any taxes and duties), being an amount agreed in writing by You and Us, for Your use of the Service.
"Alcami Interactive" means Alcami Interactive Pty Ltd ABN 23 600 850 584, a company registered in Australia.
“Authorised User” means the persons employed, contract or otherwise directed by you to access and use the Software.
“Confidential Information” means information disclosed to or known by you as a consequence of or through your relationship with us not generally known in the industry in which we are or may become engaged and our financial, technological (including designs, technical and other specifications or standards), strategic, market or business information, including information related to research and development, budgets, purchasing, accounting, engineering, manufacturing, marketing, merchandising and selling, prices, margins, rebates, costs, inputs, concepts not reduced to writing, processes not reduced to writing, methods not reduced to writing, customer and supplier lists, source and object codes and details and technology developed by or on behalf of us.
“Intellectual Property” means designs, copyright, trademarks, patents, trade and business names, inventions, techniques, discoveries and improvements, concepts, adaptations, computer programs, code, processes and know how (whether registered or unregistered) and includes names, brands, marks, logos, indicia, software, drawings, trade secrets, technical data, formulae and data bases and a reference to Intellectual Property Rights or rights in Intellectual Property means and includes all right, title, interest and goodwill in Intellectual Property including moral rights and related rights.
“Marks” means any trade mark, registered or unregistered, held (as a licensee or otherwise) or owned by us in Australia or elsewhere in relation to the Software.
“Personal Information” has the meaning set out in the Privacy Act 1988 (Cth).
“Privacy Legislation” means the Privacy Act 1988 (Cth) including the Australian Privacy Principles and any other applicable privacy legislation.
“Proprietary Rights” means all right, title, interest and goodwill including our Intellectual Property Rights in and with respect to the Software.
“Schedule” means the schedule to this Agreement.
“Software” means the proprietary browser-based application, available at [YourUserName].alcami.video, known as ‘Alcami Interactive’ developed and made available by us, including any upgrades or modifications made by us from time to time.
1. Licence AND ACCESS
We grant you a non-exclusive, non-transferrable licence to access and use the Software in accordance with this Agreement.
2. Authorised use
- You, and any Authorised User, may access and use the Software in accordance with this Agreement.
- If there is a Permitted Number of Users set out in Schedule 1 you must not permit more than that number of users to access or use the Software.
- The Software is programmed to track the number of Authorised Users who access the Software, together with other usage and user related data. You:
- consent to us doing this; and
- must not hinder, impede, alter, prevent, or otherwise distort, the operation of such tracking and reporting functions.
3. Access Fee
You agree to pay all Access Fees required to access or use the Software within 7 days of a correctly rendered invoice. We may cease access to the Software if you do not pay any Access Fees.
- The term of this Agreement will be 12 months from Commencement Date and shall continue until terminated in accordance with this Agreement.
- We may immediately terminate this Agreement if:
- you fail or refuse to make, or we do not receive in full and in cleared funds, any payment of the Access Fee or any part of the Access Fee;
- in our reasonable opinion, you have caused damage (whether permanent or not) to the Software, including but not limited to the corruption of data, files or code; or
- you breach any term of this Agreement and fails to remedy such breach to our satisfaction within seven (7) days of notification from us.
- On termination of this Agreement:
- you must not access or attempt to access the Software;
- we may immediately deny you access to the Software at our sole discretion and we will not be liable for any damage or loss suffered by you as a result; and
- to the extent permitted by law, you will not be entitled to a refund of any Access Fees paid by you.
- Any termination of the licence granted under this Agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this Agreement, which is expressly or by implication intended to continue in force after such termination.
6. User Interface
- You may be permitted to customise how you view certain parts of the Software. You acknowledge and agree that any change by you:
- does not affect the ownership of the Proprietary Rights in any way;
- will not infringe our Intellectual Property Rights or the Intellectual Property Rights of any third party; and
- will not include, anything that, in our opinion and complete discretion, is offensive, defamatory, obscene, unlawful, vulgar, harmful, pornographic, threatening, abusive, harassing, or ethnically objectionable.
- You will not allow or permit any Authorised User to upload or include anything to the Software or on the application that, in our opinion and complete discretion, is offensive, defamatory, obscene, unlawful, vulgar, harmful, pornographic, threatening, abusive, harassing, or ethnically objectionable.
7. Ownership and use of Intellectual Property
- We licence (not sell) the Software to you. The Proprietary Rights are and will remain exclusively our property. You must use all reasonable endeavours to safeguard the Proprietary Rights.
- You acknowledge that we are and remain the owner (or authorised user or licensee) of all Intellectual Property in and with respect to the Software, including all copies of the Software and all modifications, enhancements, improvements, derivative works, content additions or changes and upgrades to the Software, as well as the data, information and Personal Information (to the extent permitted by law) created by you or generated through your use of the Software.
- Except with our prior written consent you must not, and must not allow or cause any other person (except as otherwise expressly authorised under this Agreement) to:
- make any copy, adaptation, translation, arrangement or version of the Software;
- reverse compile, reverse engineer, decompile or disassemble the Software other than as permitted by applicable law and then only to the extent that we are not permitted by that applicable law to limit or exclude the right of you to do so;
- conceal, alter or cover any Software identification or notices of any proprietary or copyright restrictions from the Software;
- deal with the Software, in a manner which is not permitted under this Agreement;
- download, print, copy, burn, capture, re-transmit, stream or re-stream, record or reproduce the Software, by any means;
- allow unauthorised access to the Software;
- alter, change, remove, obscure or add to any notices or other indications (including copyright notices) as to the ownership of or any other labels, symbols, logos, legends or Marks affixed to or embodied in the Software; or
- frame, deep link or establish unauthorised links to any part of the Software.
- You agree that:
- you may only use our Intellectual Property if agreed, in writing, by us;
- the use of any of our Intellectual Property must at all times include an acknowledgment of our ownership of all Intellectual Property Rights therein;
- you may not use or allow the use of any of our Intellectual Property in connection with any other Software, services or business or as part of the corporate or any trade name;
- you will not register or otherwise carry on business as a company, partnership, joint venture or such other business or organisation, directly or indirectly, using any name, mark or logo identical with or similar to any of our Intellectual Property;
- you must not nor attempt to vary or cancel any registration of any of our Intellectual Property;
- you will not represent or otherwise imply that you are the owner or creator of the Software or that you have the proprietary rights to the Software or that you are anything other than a non-exclusive licensee of ours. You shall refer all enquiries from any person to use in relation to the potential commercial use of the Software to us;
- you must not apply nor attempt to register any Intellectual Property which is identical with or similar to any of our Intellectual Property; and
- we have an absolute right of approval overall production and use by you of any of our Intellectual Property.
- You must immediately notify us immediately on becoming aware of any unauthorised use or copying of the while or any part of the Software.
- You must promptly return to us or permanently delete or destroy (at our election) all Confidential Information and any items consisting of or bearing any of our Intellectual Property.
- If this Agreement comes to an end, you must stop all use of the Software, Marks, Confidential Information and our other Intellectual Property.
- Both parties warrant that we will comply with the Privacy Legislation in the collection, use, disclosure and protection of any Personal Information.
- Neither party will do anything that may cause the other to breach the Privacy Legislation.
- Each agrees to indemnify and hold the other harmless against any and all costs, losses, claims, damages and liabilities whatsoever resulting directly or indirectly from any breach of this clause 9, or any of your employees, agents or representatives (including any Authorised Users).
9. Confidential Information
- You may be granted access to our Confidential Information. You:
- acknowledge that the Confidential Information remains our property; and
- must not disclose the Confidential Information to any third party without our express written consent or required by law.
- Immediately upon termination of this Agreement, you must deliver up to us the Software (including all copies, authorised or otherwise), whether in their original for, or as modified by the customer.
10. Warranties and limited liability
- Subject to the limitations set forth in this Agreement, we warrant to you that the Software will conform in all material respects to our specifications for the Software.
- The express warranty set forth in clause 10(a) constitutes the only warranty given by us in respect of the Software. We do not offer or enter into any other representation warranty, condition or other term of any kind, whether express or implied (either or by custom, course of dealing or by operation of law), with respect to the Software, and all such additional warranties, conditions or other terms are hereby excluded. We expressly exclude to the extent permitted by law all warranties, conditions or other terms of satisfactory quality or fitness for a particular purpose.
- We shall have no obligation under the warranty contained in clause 10(a):
- in the event you or any other person or entity incorporates, attaches or otherwise engages any attachment, feature, program, or device to the Software; or
- if any non-conformance is caused by: misuse; alteration, translation, modification, or enhancement of the Software by you or any other person or entity; computer malware; your failure to provide a suitable access environment; your failure to provide adequate electrical power; your failure to ensure adequate Software firewalls or protections; your use of systems not meeting specifications or not of sufficient size or capacity to utilise or properly utilise the Software; or use of the Software for other than the specific purpose for which the Software is designed.
- Except as otherwise set out in this Agreement, our sole obligation under the warranty in clause 10(a) shall be to provide within a reasonable time the response necessary to correct any non-conformance of the Software to our specifications for the Software.
- We are not responsible for any loss or damage you may suffer (including the corruption and/or loss of data) as a result of any matter over which we have no control including but limited to:
- issues with your internet connection (however caused);
- network errors;
- incompatible hardware or Software
- your misuse of the Software;
- you or your Authorised Users not acting in accordance with instructions or directions provided by us (or on our behalf) to you;
- limits on available bandwidth;
- infrastructure issues.
- We will have no liability or responsibility to you or any Authorised User for any loss, damage or injury whether arising in contract, tort, equity or otherwise which does not flow directly from a breach of this Agreement, including:
- loss or profits or sales;
- loss of bargain;
- loss of opportunity;
- loss of use of any Application or any other computer equipment, Application or data;
- loss of time on the part of management or other staff;
- any other indirect or consequential loss.
- Our liability for any loss, damage or injury incurred or suffered by you for which we are liable under this Agreement or at law shall not exceed in each instance a sum equal to the amount received from you preceding the date on which the event giving rise to the loss, damage or injury arose.
During the period of the Agreement, you must, at its expense hold and keep current all valid, enforceable, necessary and adequate insurances, with a financially sound and reputable insurer, to cover your business activities, and any insurable event that may arise out of your use to the Software.
- You agree to indemnify and hold us harmless against any and all costs, losses, claims, damages and liabilities whatsoever resulting directly or indirectly from any breach of this Agreement by you, or any of your employees, agents or representatives. Such indemnification shall include the payment of all legal fees and other costs on a solicitor and own Authorised User basis incurred by us, including the defending of any claims or proceedings. The indemnity under this clause is a continuing, irrevocable and unconditional indemnity.
- You must promptly advise us in writing of any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs charges and expenses which may be brought or claimed against you or us or in respect of which you or us may become liable arising out of the promotion, sale, supply or use of the Software by you or the Authorised Users.
13. Records and Reports
You will during the term of this Agreement, and for a seven (7) year period after termination of this Agreement, keep and maintain complete and accurate business records and documentation with respect to its activities under this Agreement, and will make such records available to us or our agents upon our written request, for inspection at your principal place of business. If requested, you will provide us with regular reports setting forth information including feedback from you or your clients regarding the Software and your activities under this Agreement.
- You must not modify the whole or any part of the Software or combine or incorporate the whole or any part of the Software in any other program or system without our prior written consent.
- If the Software is modified in accordance with clause 15(a), the modifications must, unless the Supplier directs otherwise, be made in accordance with a written proposal submitted by you to us.
- You agreed to indemnify us against any liability incurred if the modifications infringe the Intellectual Property Rights of a third person.
- The Software as modified remains our property.
- This agreement shall continue to apply to the Software as modified.
15. Force Majeure
- We will not be liable for any delay or failure to perform our obligations if such failure or delay is due to any unforeseen circumstance or a circumstance beyond our reasonable control.
- The circumstances referred to in clause 16(a) include but are not limited to acts of nature, acts of government, labour disputes and delays in delivery.
- We will notify you as soon as practicable of any anticipated delay due to force majeure. The performance of our obligations under this Agreement will be suspended for the period of the delay due to force majeure.
16. Secrecy obligations
- You must:
- keep confidential all information and technical data disclosed by us however you may disclose such information to the Authorised Users insofar as it is necessary for them to know the information for the use of the licences granted under this Agreement; and
- not use any of the information and technical data disclosed by us, except for the purpose of the licences granted herein and non the terms of this Agreement.
- Despite clause 17(a), you may disclose information if and to the extent that:
- such disclosure is forced by laws, regulations or orders; or
- the information is generally available in the public domain except where that is a result of a disclosure in breach of this Agreement.
- This Agreement are governed by the laws of the State of New South Wales. In the event of a dispute the parties hereby submit to the non-exclusive jurisdiction of the courts of New South Wales or Federal courts of Australia, as applicable.
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter set out in this Agreement and supersedes all prior and contemporaneous communications. It shall not be modified except by a written agreement signed on behalf of you and us by respective duly authorised representatives.
- This Agreement shall not be assigned or transferred by you without our prior written approval, which approval shall not be unreasonably withheld. We can assign the rights and obligations under this Agreement to any third party at any time without your approval.
- You shall not be entitled to subcontract any of your obligations under this Agreement without our prior written consent.
- If any provision of this Agreement shall be determined to be invalid, such invalidity shall not affect the validity of the remainder of these Terms.
- The parties will comply with all obligations in relation to GST
- No waiver by either party of any default or breach by the other party of any of the provisions of these Terms shall constitute a waiver of any prior or subsequent default or breach of this Agreement.
- Subject to the limitations specified in this Agreement, this Agreement will inure to the benefit of and be binding upon the parties, their successors and permitted assigns.