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End User License Agreement

  1. Who we are and how to contact us
     

    1. We are Enablo Pty Ltd ACN 617 374 286 of Level 1, 310 Edward St, Brisbane 4000 (we, us and our).
    2. To contact us, please email [email protected]

      3.  

  2. Our contract with you
     

    1. You are required to accept these terms and conditions (Terms) before downloading, installing or using certain software made available by us (Software).
    2. These Terms apply to the supply of Software by us to you (Contract). To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.
    3. Where the Software is to be made available to an organisation’s employees and officers (Users), you are agreeing to this document on behalf of that organisation (and, for avoidance of doubt, references to ‘you’ are to that organisation). The person agreeing to this Contract on behalf of an organisation warrants that such person is authorised to enter into this Contract on behalf of that organisation.
    4. If you are an organisation, you may only allowUsers to access the Software. That access must be in accordance with this Contract.
    5. If you are not an organisation, only you may access the Software. That access must be in accordance with this Contract.
    6. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

      7.  

  3. Your obligations
     

    1. It is your responsibility to ensure that:
      1. you cooperate with us in all matters relating to the Software;
      2. you provide us with such information and materials we may reasonably require in order to supply the Software, and ensure that such information is complete and accurate in all material respects;
      3. you obtain and maintain all necessary licences, permissions and consents which may be required for your use of the Software; and
      4. you comply with all applicable laws, including health and safety laws.
    2. If our ability to provide the Software is prevented or delayed by any failure by you to fulfil any obligation listed in clause 3.1 (Your Default):
      1. we will be entitled to suspend performance of the Software until you remedy Your Default, and to rely on Your Default to relieve us from the provision of the Software, in each case to the extent Your Default prevents or delays performance of the Software. In certain circumstances Your Default may entitle us to terminate the Contract under clause 10 (Termination);
      2. we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to provide the Software; and
      3. it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.

       

  4. Restrictions
     

    1. You will not (and will procure that each User of the Software, if any, will not) access, store, distribute or transmit, any material during the course of its use of the Software that:
      1. contains malware, worms, trojan horses, viruses and other similar things;
      2. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      3. facilitates illegal activity;
      4. depicts sexually explicit images;
      5. promotes unlawful violence;
      6. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
      7. causes damage or injury to any person or property,

       
      and we reserve the right, without liability to you, to disable access to any material that breaches the provisions of this clause 4.1.
       

    2. You must not (and will procure that each User of the Software, if any, will not):
      1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
        1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
        2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of theSoftware;
      2. access all or any part of the Software in order to build a product or service which competes with the Software;
      3. use the Software to provide services to third parties unless otherwise agreed with us, in advance;
      4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except your Users (if any); or
      5. attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this agreement.

       

    3. You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify us.

     

  5. Charges and payment
     

    1. In consideration of us providing the Software, you must pay our charges (Charges) in accordance with this clause 5.
    2. The Charges are the prices quoted on our site at the time you submit your order. Our Charges may be nil.
    3. Our Charges are exclusive of goods and services tax (GST). Where GST is payable in respect of some or all of the Software, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Charges.
    4. Payment for the Software is in advance. We will take your first payment upon acceptance of your order and will take subsequent payments monthly in advance.
    5. You can pay for the Software using most debit cards or credit cards.
    6. We will send you an electronic invoice within seven days of the beginning of the month following payment.

     

  6. Charges and payment
     

    1. All intellectual property rights in or arising out of or in connection with the Software (other than intellectual property rights in any materials provided by you) will be owned by us or licensed to us by a third party.
    2. We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use (and, where relevant, allow your Users to use) the Software for your business purposes. You may not sub-license, assign or otherwise transfer the rights granted in this clause 6.2.
    3. You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Software to you.

     

  7. How we may use your personal information
     

    1. We will use any personal information you provide to us to:
      1. provide the Software;
      2. process your payment for the Software;
      3. inform you about similar products or services that we provide, but you may stop receiving this information at any time by contacting us; and
      4. as provided for in our privacy policy which is available at https://www.enablo.com/privacy-policy.
    2. If you provide or make available any personal information to us in connection with the Software, you must make all disclosures and obtain all consents necessary to allow us to collect, store, use, disclose and otherwise deal with that personal information lawfully.

     

  8. Limitation of liability
     

    1. Nothing in this Contract limits or excludes our liability:
      1. for death or personal injury caused by our negligence or wilful misconduct or that of our employees, as applicable;
      2. for fraud or fraudulent misrepresentation by us or our employees, as applicable; or
      3. where liability cannot be limited or excluded by applicable law.
    2. Subject to clause 8.1 and 8.4 we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including any:You must not (and will procure that each User of the Software, if any, will not):
      1. loss of profits;
      2. loss of sales or business;
      3. loss of production;
      4. loss of agreements or contracts;
      5. loss of business opportunity;
      6. loss of anticipated savings;
      7. loss of or damage to goodwill;
      8. loss of reputation; or
      9. loss of use or corruption of software, data or information.
    3. Subject to clauses 8.1, 8.2 and 8.4, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with the supply of Software under this Contract, including any breach by us of this Contract however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the amount of $10.
    4. Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
    5. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option:
      1. in the case of services, the resupply of the services or the payment of the cost of resupply; and
      2. in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
    6. To the extent permitted by law, we:
      1. do not warrant that use of the Software will be uninterrupted or error-free or that the Software and/or the information obtained by you through the Software will meet your requirements; and
      2. are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    7. This clause 8 will survive termination of the Contract.

     

  9. Confidentiality
     

    1. You and we each undertake not to at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 9.2.
    2. Each of us may disclose the other’s confidential information:
      1. where the information is in the public domain as at the date of this Contract (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on either of us);
      2. if either of us is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;
      3. where the disclosure is expressly permitted under this Contract;
      4. if disclosure is made to our respective officers, employees and professional advisers to the extent necessary to enable that party to properly perform its obligations under this Contract, in which case the relevant party must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
      5. where the disclosure is required for use in legal proceedings regarding this Contract; or
      6. if the party to whom the information relates has consented in writing before the disclosure.
    3. Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.

     

  10. Termination
     

    1. We may suspend the supply of Software, or terminate this Contract without cause, by giving you reasonable notice.
    2. Without affecting any of our other rights, we may suspend the supply of Software, or terminate this Contract with immediate effect by giving written notice to you if:
      1. you fail to pay any undisputed amount due under this Contract on the due date for payment and you remain in default not less than 30 days after being notified in writing to make such payment;
      2. you commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing to do so;
      3. an insolvency event occurs in relation to you; or
      4. there is a change of control of your company without our consent.
    3. On termination of the Contract you must immediately cease use of the Software.
    4. Termination of this Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.
    5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
    6. We may modify or withdraw the Software on reasonable notice to you.

     

  11. Force majeure
     

    1. A party will not be:
      1. in breach of this agreement as a result of; or
      2. liable for,

        3.  
        any failure or delayin the performance of its obligations (other than a payment obligation) underthis agreement to the extent that such failure or delay is wholly or partiallycaused, directly or indirectly, by a Force Majeure Event, provided that:
         

      3. that party advises the other party of the details of the Force Majeure Event, and its likely effect on the performance of its obligations under this agreement; and
      4. that party takes all steps reasonably necessary to recommence performance of the affected obligations and minimise the delay caused by the Force Majeure Event.
    2. Force Majeure Event means any occurrence or omission outside a party’s control and:
      1. a physical natural disaster including fire, flood, lightning or earthquake;
      2. war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
      3. national emergency;
      4. epidemic, pandemic, public health emergency, communicable disease outbreak, quarantine restriction and precautionary measures relating to the same;
      5. ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
      6. failure of a third party service provider;
      7. failure of a third party to provide a necessary input;
      8. confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any Government agency;
      9. orders or acts of military, civil authority or Government agency;
      10. law taking effect after the date of this agreement; and
      11. strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors.

     

  12. Non-solicitation
     

    1. During the term of this Contract and the Restraint Period, you will not solicit or entice any of our employees or contractors to work for you or any competitor of ours, unless you obtain Enablo’s prior written consent.
    2. The Restraint Period means:
      1. 24 months;
      2. 12 months;
      3. 6 months.
    3. The undertakings contained in clause 12.1 and resulting from any combination of the wording from clause 12.2 constitutes a separate and independent provision, severable from the other undertakings and enforceable by us separately against you and independently of each of the other undertakings. If a court of competent jurisdiction finally decides any such undertaking to be unenforceable in whole or in part, the enforceability of the remainder of that undertaking or any other undertaking will not be affected.
    4. If you this clause 12 or we form the reasonable view that you are to breach this clause 12, the parties agree that:
      1. damages are not an adequate remedy; and
      2. we may apply for injunctive relief.

     

  13. Notices
     

    1. When we refer to “in writing” in these Terms, this includes email.
    2. Any notice or other communication given by one of us to the other under or regarding the Contract must be in writing and be delivered personally, sent by pre-paid post or email.
    3. A notice or other communication is deemed to have been received:
      1. if delivered by hand to the nominated address, when delivered to the nominated address;
      2. if sent by pre-paid post, at 9.00 am (addressee’s time) on the second Business Day after the date of posting; or
      3. if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
    4. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
    5. The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

     

  14. Variation
     

      We may amend these terms and conditions from time to time and will give you reasonable notice of any such amendment.

     

  15. No waiver
     

    1. Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Contract unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
    2. Words or conduct referred to in clause 15.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

     

  16. Assignment and novation
     

    1. We may assign or transfer our rights and obligations under the Contract to another entity.
    2. You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
    3. A breach of clause 16.2 by you entitles us to terminate this Contract..

     

  17. Severability
     

    1. If the whole or any part of a provision of this Contract is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
    2. Clause 17.1 does not apply if the severance of a provision of this Contract in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Contract.

     

  18. Relationship of the parties
     

      The Contract is between you and us. No other person has any rights to enforce any of its terms

     

  19. Governing law and jurisdiction
     

      These terms and conditions, their subject matter and their formation, are governed by Queensland law. You and we both agree that the courts in Queensland will have exclusive jurisdiction.