This is an agreement between you and Point Share Plus Pty Ltd (ABN 58 627 411 894) (the Licensor)and, together with any supplemental license terms and any specific terms and conditions including those relating to Service Levels (collectively, the "EULA"), governs your Use of the Point Share Plus Service and Content.
Any capitalised terms used throughout of the EULA are defined terms. The definitions can be found in the main body of the EULA and/or in Section 14.
1. ACCEPTANCE OF TERMS
1.1 By Using the Point Share Plus Service, you are agreeing to be bound by the terms and conditions set forth in the EULA. Depending on the circumstances, the EULA may be complemented by supplemental license terms and specific terms made available in connection with accessing the Point Share Plus website, accessing or Using the Point Share Plus Service. Those additional terms and conditions form part of the EULA. In case of conflict between the EULA and such additional terms, the latter shall prevail. You agree to comply with the EULA in its entirety.
1.2 If you do not agree to the terms and conditions of the EULA, or if you do not have the right, power and authority to act on behalf of the entity entering the EULA, do not download, install, access, and/or otherwise Use, the Point Share Plus Service or do not otherwise click on any button or other mechanisms designed to acknowledge acceptance of terms.
1.3 The Licensor reserves the right to amend the EULA at any time. Your continued Use of the Point Share Plus Service after notification of such amendment will constitute acceptance of such amendments.
2. EULA TO APPLY
The Licensor will not accept any terms and conditions which you propose and if you subscribe for and or use the Point Share Plus Service and Content you accept that the EULA applies to the exclusion of any terms and conditions proposed by you.
3.1 Subject to payment of the applicable fees and compliance with the EULA, the Licensor grants you a non-exclusive, non-transferable, non-assignable and non-sub licensable right to run and use the Point Share Plus Service and Content as well as to access the Documentation on the terms set out in the EULA (the "License"). This License may be terminated as provided in the EULA.
3.2 Your right and the extent to which you may use Point Share Plus Service and Content will depend on the Service Level you subscribe to (see clause 4 of this EULA). The license granted to you will be subject to you paying all relevant subscription fees and other charges if you do not pay these subscription fees and other charges the license will terminate.
3.3 Restrictions. All rights not expressly granted by the Licensor hereunder are reserved. You have only the limited rights granted with the Point Share Plus Service expressly set forth in the EULA, andyou have no other rights, implied or otherwise. Without limiting the generality of the previous sentence, you agree that you will not use the Point Share Plus Service in any manner that is unlawful or contrary to law, or prohibited by the terms of this EULA and that you will not and will not allow any third party to:
(a) provide or upload false information, create false identities, or use or attempt to use another user’s identity;
(b) copy, sell, market, licence, sublicense, lend, loan, distribute, transmit, rent, lease, upload, post, electronically transfer or otherwise assign or transfer or directly or indirectly permit any third party to use, access, exploit or copy any part of the Point Share Plus Service, including any Code or Content;
(c) copy ideas, features, functions or graphics of the Point Share Plus Service for use in another product or service;
(d) defame, abuse, harass, stalk, threaten, breach the confident of, or otherwise violate the legal rights (such as the rights of privacy) of any other person or entity;
(e) hack into any part of the Point Share Plus Service through password mining, phishing, or any other means;
(f) knowingly introduce viruses, Trojans, worms, logic bombs, spyware, malware, or other similar material to the Point Share Plus Service;
(g) circumvent the Point Share Plus Service’s structure, presentation or navigational function so as to obtain information The Licensor has chosen not to make publically available through the Point Share Plus Service;
(h) probe, scan or test the vulnerability of any system or network, or breach or circumvent any security or authentication measures;
(i) disrupt an exchange of information between users or otherwise act in a manner that negatively effects users, including through a denial-of-service attack or a distributed denial-of-service attack;
(j) transmit any unsolicited advertising or promotional materials, or any other forms of solicitation, unless expressly authorised by The Licensor;
(k) harvest information about other users in order to facilitate the transmission of such materials as set out in paragraph (j) above;
(l) take any action that imposes, or in the sole discretion of The Licensor, may impose an unreasonable or disproportionately large load on The Licensor’s infrastructure;
(m) forge any TCP/IP packet header, or any part of the header information in any email or posting, or in any way use the Point Share Plus Service to send altered or deceptive or false source-identifying information;
(n) make your Access Credentials or subscription details available to third parties other than where such Use is solely (i) on your behalf, (ii) for your internal operations, and (iii) in compliance with this EULA. You agree that you are liable for any breach of this EULA by that third party;
3.4 Term: Your License is valid solely for the applicable term. Your right to Use the Point Share Plus Service and Content commences on the date the Point Share Plus Service is made available to you for access and continues until the end of the specified term, unless otherwise terminated in accordance with the EULA.
3.5 Compliance with Laws. You agree to use the Point Share Plus Service in compliance with all applicable laws, including local laws of the country or region in which you reside.
3.6 Monitoring. Whatever the type of License granted, you acknowledge and agree that the Licensor may monitor your Use of the Point Share Plus Service for compliance with the EULA.
4.1 In order to use the Point Share Plus Service, you must create an Account with the Licensor by providing the following details:
(c) Contact number;
(d) Email address.
4.2 You warrant that the details you provide to the Licensor are accurate and that you will not:
(a) Impersonate any other person or entity;
(b) Use a false name, alias, or a name that you are not authorised to use.
4.3 Upon registration, you will be asked to create your Access Credentials. You acknowledge and agree that you are responsible for the security of your Access Credentials.
5. SERVICE LEVELS
5.1 The rights which you have under the license granted to you will depend on the Service Level to which you subscribe. Currently there are 4 Service Levels:
Package 1: (Starter Level)
30 GB of data
30 GB of Bandwidth
Package 2: (Silver Level)
250 GB of data
250 GB of Bandwidth
Package 3: (Gold Level)
1 TB of data
1 TB of Bandwidth
Package 4: (Enterprise Level)
Which is for use by larger organisations
The conditions and rights applicable with each Service Level are set out on the Licensor’s website and are deemed to be incorporated into EULA.
5.2 You may upgrade and downgrade and buy more access on the server on the basis of the conditions on the Licensor’s website.
5.3 If you downgrade to a lower level and your data exceeds the storage space the excess data will be deleted 48 hours after you confirm to downgrade.
5.4 The Licensor may revise the provisions relating to Service Levels; replace Service Levels and put in place new Service Levels.
5.5 According to uploaded data format (Las/Laz/ptx/pts/ply/xyz) the processed file size will vary from original uploaded file. In fact the uploaded datasets will be expanded due to some processing algorithms and the processed file size will be displayed in User Control Panel.
6.1 Except as required by the Australian Consumer Law, the Point Share Plus Service is provided to you on an ‘as is’ basis and without any express or implied warranties, including warranties as to accuracy, completeness, merchantability, or fitness for any particular purpose. To the maximum extent permitted by law the Licensor does not warrant that the Point Share Plus Service and its Code are free from defects or that it will perform in compliance with any specifications or your requirements. You agree that you use the Point Share Plus Service at your sole risk.
6.2 You acknowledge and agree that:
(a) The Licensor cannot guarantee uninterrupted access to, and use of, the Point Share Plus Service at all times;
(b) The Point Share Plus Service is not fault tolerant and is not designed or intended for use in connection with environments that require fail-safe performance;
(c) The Licensor may modify or update the Point Share Plus Service at any time and if you are dissatisfied with the amendments, your sole remedy will be to cease using the Point Share Plus Service; and
(d) you have relied on your own skill, knowledge, experience and judgment, or that of a third party expert outside of the control of the Licensor, to verify that the Point Share Plus Service meets your requirements and that you are not relying on any warranty of fitness for your needs.
6.3 The Licensor makes no warranty that it will release updates, service packs, patches or hot fixes in relation to any defects in the Point Share Plus Service.
6.4 You are solely responsible for all of the following:
(a) The use, supervision, management and control of the Point Share Plus Service;
(b) Maintaining adequate security measures to prevent unauthorised or inappropriate use of the Point Share Plus Service;
(c) Establishing adequate backup and recovery systems to prevent adverse consequences if the Point Share Plus Service malfunctions;
(d) Ensuring the security of Access Credentials;
(e) Making sure that your Device is suitably configured, maintained and operates so as to enable you to use the Point Share Plus Service;
(f) Support of operating systems, ancillary services, or other software or Point Share Plus Services;
(g) recovery of damage or data loss arising from equipment (including memory, hard drive or CPU) failure, network failure, misuse, negligence, alteration, improper wiring, malware, viruses or failure to complete backups.
7. WARRANTIES BY YOU
7.1 Respect of Laws & Standards. You acknowledge that the Use of the Point Share Plus Service may be subject to requirements or limitations under any law, regulation, code or standard ("Laws and Standards"). You shall be exclusively responsible for and warrants that You will (i) fully comply with all Laws and Standards relating to the export control of the Point Share Plus Service, as further detailed in Section7.2, (ii) ensure compliance with all Laws and Standards associated with Your intended Use of the Point Share Plus Service and obtain all necessary approvals, permits or clearances for such Use.
7.2 Indemnification. You undertake to fully indemnify and hold harmless the Licensor, and its partners, directors, officers, agents and employees (each, an "Indemnified Party") from any damage, claim, liability, loss or expenses ( including costs on a lawyer and client basis arising out of or relating to a breach of Your warranties under Section 5.1, whether or not caused by the Indemnified Party's negligence and whether or not the relevant damage, claim, liability, loss or expense has merit.
8. LIMITS ON WARRANTIES BY THE LICENSOR AND/OR ANY APPROVED SOURCE
8.1 To the extent permitted by law, the Licensor does not make any warranties or representations in respect of the Point Share Plus Service. There are some warranties implied by Australian law which cannot be excluded.
8.2 You must satisfy yourself that the Point Share Plus Service is suitable for Your intended purpose and that your device is suitable for using the Point Share Plus Service.
8.3 Where the Licensor has failed to comply with a consumer guarantee under Australian Law and the service provided by the Licensor under the EULA is not for personal, domestic or household use or consumptionthe Licensor’s liability shall be limited to one of the following remedies as determined by the Licensor:
- supplying the relevant service again; or
- The payment of the cost of having the services supplied again.
9. LIMITATION OF LIABILITY
(a) The Licensor and/or any Approved Source is not responsible for any problems or technical malfunctions of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the internet, or interruptions in the internet. For the sake of clarity, neither the Licensor nor any approved Source further bears any liability for the transfer and content of any metadata attached to or contained in the pictures uploaded by you whilst using the Point Share Plus Service and/or any related services.
(b) Subject as mentioned below to the extent permitted by law, the Licensor shall not be liable for any consequential loss or loss of profits arising from any breach of the EULA or any other matter replating to the licensing of the Point Share Plus Service or the use of the Point Share Plus Service by you (including as a result of the negligence of the Licensor or its agents or contractors) and the Licensor’s liability for any breach of the EULA or License shall be limited to an amount equal to the license or subscription fees paid by the Licensor during the period of 12 months from which the breach occurred.
(c) The limitations in paragraph (b) do not apply where the License is a “Small Business Contract” as defined in the Australian Consumer Law.
10. INTELLECTUAL PROPERTY
10.1 Ownership rights
(a) Subject to the License granted hereunder, all title, ownership, intellectual property rights and all other rights and interests in and to the Point Share Plus Service (including any updates, enhancements, derivatives and modifications), the Code, Content and Documentation and any copies thereof, are owned by the Licensor. You acknowledge and understand that the Point Share Plus Service is licensed and not sold.
(b) Your Use of the Point Share Plus Service does not grant you any rights or title to any intellectual property rights in the Point Share Plus Service, Code, Content or Documentation.
(c) The structure, organisation and Code of the Point Share Plus Service are valuable trade secrets and confidential information of the Licensor.
(d) You further acknowledge that Point Share Plus is a trademark which is owned exclusively by the Licensor and that the License does not grant you any right whatsoever in this trademark.
10.2 Your content: It is expressly agreed that any input or output file, which is any file generated by you as a result of your Using the Point Share Plus Service shall belong to you.
11. OTHER COVENANTS
Subject to the legislation relating to privacy and protection of personal data You agree to be identified as a customer of the Licensor. The Licensor may refer to You by name, trade name, trademark and may briefly describe the nature of Your business on any marketing materials of the Licensor, including but not limited to the Website, and any public or legal documents.
11.2 Privacy and Personal information
(b) Any non-personal information you send to the Licensor through the Point Share Plus Service, such as questions, comments, or suggestions, may not be encrypted and will not be treated as confidential. You agree that you have provided a non-exclusive, perpetual, royalty free licence to the Licensor to use, reproduce and modify any non-personal information you provide to the Licensor for any purpose whatsoever.
(c) You agree that the Licensor may disclose the Personal Information it collects about you (including, but not limited to, your name and contact details) to any authorities without limitation. If you have infringed the rights of a third party, you agree that the Licensor may provide your personal details to the relevant rights holder.
(d) You agree that the Licensor may disclose any information that it, in its absolute discretion, considers it is required to disclose in order to satisfy any applicable rule of law, legal process, private request, or government request.
(e) The Licensor processes certain information and data (which may include personally identifiable information and/or personal data) relating to:
(i) The end user of the Point Share Plus Service and/or any Device which Uses the Point Share Plus Service;
(iii) The metadata attached to the imagesuploaded by You.
(i) Where any processing of your personal data is based on a necessary and specific declaration of consent by you, such consent has been granted by you in a separate document.
(ii) The Point Share Plus Service may communicate automatically with any cloud-based technology used by the Licensor to function and to make the Point Share Plus Service and other products and services of the Licensor more effective;
(iii) any personally identifiable information and/or personal data collected through or during Your Use of any of the various Point Share Plus Service solutions may circulate or be freely transferred among any of the Licensor's related companies; and that
(iv) Data collected by the Licensor in connection with the Use of a product manufactured or distributed by an Affiliate may be shared with such Affiliate for the following purposes: product improvement, support in case of technical issue with the product, supply chain and database management, statistics.
it being specified that you may withdraw your consent to such communication and/or transfer by cancelling your Point Share Plus Subscription.
(g) The Use of the Point Share Plus Service may facilitate or require your access to and your Use of content and services that are hosted on websites maintained by the Licensor or by third parties. In some cases, such content and services may appear to be a feature or function within, or extension of, the Point Share Plus Service, even though hosted on such websites. Accessing such content or services may cause your computer and/or Device, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with a Licensor's or third-party website—for example, for purposes of providing You with additional information, features and functionality or to validate that the Point Share Plus Service is being used as permitted under the EULA or other applicable terms. Such connectivity to websites of third parties is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the third-party content or services. The Licensor does not control, endorse, or accept responsibility for any such third-party content or services.
12. DURATION OF the LICENSE – TERMINATION OF THE AGREEMENT
12.1 Duration: The EULA shall remain effective until terminated upon cancellation or until the expiration of the applicable License or subscription term. The license will come to an end if you fail to pay your subscription.
(a) By you: You may terminate the EULA - and its right to use the Point Share Plus Service - at any time by ceasing Use and cancelling your Point Share Plus Subscription.
(b) By the Licensor: The Licensor may terminate the EULA for any reasonby notice to you. The Licensor is not required to give a reason for termination. If the Licensor has terminated the License for a period in which you have had a subscription fee, the Licensor will provide you with a pro rate refund.
12.3 Effect of termination:
(a) Upon termination or expiration of the EULA, You shall immediately discontinue your Use of the Point Share Plus Service and of the Documentation and cancel your Point Share Plus Subscription.Upon the Licensor’s request, You shall certify that it has fully complied with the foregoing undertaking.
(b) For sake of clarity, the Licensor shall have no further obligation to provide assistance once the EULA has been terminated, unless the Parties agree otherwise.
(c) The termination or expiration of the EULA will not limit any of the Licensor’s rights or remedies under the EULA or at law.
(d) Upon cancellation, your data will be deleted after 48 hours
13. Force Majeure
The Licensor shall not be liable for any non performance of its obligation in the EULA or pursuant to the License where non performance arises by reason of any matter, which is beyond the reasonable control of the Licensor (including any event affecting suppliers or contractors of the Licensor, including the operator of the server) (Event of Force Majeure), including but not limited to:
(a) Any interruption in the internet;
(b) Any interruption in electricity or any power surge;
(c) Any accident or fire;
(d) Any government action or change of law.
Shortage of funds on the part of the Licensor is not an Event of Force Majeure.
If an Event of Force Majeure occurs the Licensor will advise You of the expected duration and what steps it proposes to attempt to resolve or mitigate the effects of the Event of Force Majeure.
14.1 Independent Contractors: The Licensor and You are independent contractors, and the relationship created hereby shall not be deemed to be that of principal and agent.
14.2 Severability: If any provision of the EULA is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the legal and economic intent of the Parties to the fullest extent possible. In any event, all other provisions of the EULA shall remain valid and enforceable to the fullest extent possible.
14.3 Heading: The headings contained in the EULA are included for mere convenience of reference and shall not affect the latter’s construction or interpretation.
14.4 Waiver: Failure by the Licensor to enforce at any time any provision of the EULA shall not be construed as a waiver of the Licensor's right to act or to enforce any such term or condition and the Licensor's rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by the Licensor of any breach of Your obligations shall constitute a waiver of any other prior or subsequent breach.
14.5 Entire Agreement: The EULA represents the entire agreement of the Parties and supersedes any prior discussions or understandings, whether written or oral, relating to the subject matter hereof.
14.6 Notices. For the purpose of all written communications between the Parties, any notice or other communication made in connection with the EULA shall be in writing and shall be e-mailed to the addresses below:
If to the Licensor: e-mail:[email protected]
If to you: at your e-mail furnished upon your registration. In case of change, it is your sole responsibility to notify the Licensor of your new contact details. Notices and other communications may be made in writing. Anotice given by email is deemed to have been delivered on the earlier of:
(a) Receipt by the sender of an automated message confirming delivery; or
(b) Four hours after the time sent (as recorded on the sender’s email system) unless the sender receives an automated message that the email has not been delivered or the recipient is “out of office”,
But if the transmission is not on a Business Day or is after 5.00pm on a Business Day the addressee’s time, the notice shall be taken to have been received at 9.00am (addressee’s time) on the next Business Day.
15. GOVERNING LAW
This License Agreement is governed by the law of Western Australia.
16. RESOLUTION OF DISPUTES
Where you obtained the Point Share Plus Service in Australia or New Zealand, are resident or have a place of business in Australia or New Zealand or are a company or corporation incorporated in Australia or New Zealand, then the Licensor and the Licensee submit to the non-exclusive jurisdiction of the Courts of Western Australia.
Where the Licensee has obtained the Point Share Plus Service outside of Australia or New Zealand and is not resident or does not have a place of business in Australia or New Zealand and is not a company or corporation incorporated in Australia or New Zealand any dispute or difference arising out of this EULA (including the validity of this EULA shall be and is hereby submitted with arbitration in accordance with and subject to the UNCITRAL arbitration rules. The designating and appointing authority shall be Resolution Institute. There shall be one arbitrator the language of the arbitration shall be English and the place of the arbitration shall be Perth, Western Australia.
Nothing in this clause restricts the Licensor from commencing action by injunction or otherwise in any court to prevent unauthorised use of its intellectual property,
For the purposes of this clause:
(a) The expression GST Act means A New Tax System (Goods & Services Tax) Act 1999;
(b) The expressionGST means goods and services tax levied or imposed pursuant to the GST Act; and
(c) The expressions recipient, supply, consideration, tax invoice and adjustmentevent have the meanings given to them in the GST Act.
17.2 Prices Include GST
Unless we notify you otherwise, prices and subscription and license fees include GST.
17.3 Where Prices do not include GST
(a) Where permitted by law, the Licensor may provide a quote for a price or fee which makes it clear that the price does not include GST and in that case you must pay the relevant GST.
(b) To the extent that any supply made under or in connection with this Agreement is a taxable supply, the consideration for that supply is increased by an amount determined by the Supplier, not exceeding the amount of that consideration (or its market value) multiplied by the rate at which GST is imposed in respect of supply. The amount so determined must be paid by the Customer within 7 days of receipt of a valid tax invoice even if the Customer disputes the determination.
(c) If an adjustment occurs following a determination under this clause then:
(i) The Supplier must make a further determination under this clause of the amount of the consideration payable; and
(ii) if the GST component of that consideration differs from the amount originally determined, the amount of that difference must be paid by, refunded to or credited to the recipient, as the case may be.
(d) The GST exclusive market value will be used when assessing any non-monetary consideration that may be paid in respect of any taxable supply made under this Agreement.
Each of the Supplier and the Customer shall do all things reasonably necessary on its part to achieve the objects of this clause and for the Customer to obtain the benefit of any input tax credits available.