END USER LICENCE AGREEMENT

This End User Licence Agreement (EULA) is a binding legal agreement between Bodoworks Pty Ltd (ABN 37 643 240 377) (us, we or our), and you (the individual and/or the legal entity you represent and who has purchased this software).

1 Acceptance and Account

1.1 We own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at bodoworks.com (Site) or through the Atlassian Marketplace (https://marketplace.atlassian.com).

1.2 These terms (Terms) set out the terms and conditions upon which we agree to grant you, as the holder of an account with us (Account Holder), or you, as the end user of the software (User Account), a right to use the Software as a service as described on the Site, and provide any other services as set out on the Site or in these Terms (the Services), in accordance with the terms of your Account Holder’s subscription package (Subscription).

1.3 To use our Software and Services you may also need to register for an account on the Atlassian Marketplace. Any information that you provide in the registration process, either through us or through the Atlassian Marketplace, must to be true, accurate, correct, up to date and not misleading.

1.4 By using the Services, you agree that you have read and accept these Terms and you warrant to us that you have the legal capacity to enter into a legally binding agreement. If you do not agree with these Terms, or if you do not have capacity to bind yourself or the entity that you represent, you must not use the Software or the Services.

1.5 These Terms will commence on the date on which you accept these Terms and will continue until the date the Subscription expires, or the date these Terms are terminated in accordance with clause 10 (Termination) (Term).

1.6 You acknowledge that this is a Publisher EULA as referred to in the Atlassian Marketplace Terms of Use, which are available at https://www.atlassian.com/licensing/marketplace/termsofuse

2 Licence

2.1 In consideration of the payment of the Fees for the Subscription in respect of the Services by the Account Holder, and for your compliance with these Terms, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms) and revocable licence to access and use the Services for business purposes for the Term (Licence).

2.2 We may, from time to time, offer you free, additional products on a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable limited license basis (No-Charge Products) on the terms and conditions set out by us. We may, at any time and at our sole discretion, terminate your right to use No-Charge Products without any liability to you. You understand that any No Charge Products that are offered to you under this clause, and which are still under development or offered during a trial period, may be inoperable or incomplete and contain more errors and bugs. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support Services, warranty, and indemnity obligations and you agree to the use of such No-Charge Products on the terms contained in this clause.[EO1]

3 Licence Restrictions

3.1 You must not access or use the Services except as permitted by the Licence and you must not and must not permit any other person to:

(a) use the Services in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property rights;

(b) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(d) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;

(e) use the Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services; or

(g) use the Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of any other third party.

4 Third Party Contributions

4.1 You acknowledge and agree that:

(a) the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and

(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of these Terms or law, if such default or breach was caused or contributed to by any Third Party Inputs.

4.2 You acknowledge that the Services include certain optional functionalities or features that may interface or interoperate with third party software or services. To the extent that you choose to use such functionality, you are responsible for the purchase of and any ancillary and/or licensing obligations related to the applicable third party software and services. It is your responsibility to ensure the requirements are met in order for you to benefit from the specific functionality made available to you.

4.3 This clause will survive the termination or expiry of these Terms.

5 Support Services

5.1 We may, at our sole discretion during the Term, provide you with support services in respect of any technical issues which arise in respect of the Services (Support). If you would like to request such Support, you email a support request to us and we will provide you with Support in accordance with the specifications of your Account Holder’s Subscription.

5.2 You agree, where we provide any Support to you, you will assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).

5.3 Although we endeavour to ensure that our Services are available to you at all times, we make no guarantees or warranties to you in respect of the uptime or availability of the Services. We may, from time to time, need to perform maintenance or other development activity on the Services. Where possible, we will endeavour to give you advance notice, via email, of such maintenance or development activities. [EO2]

6 Warranties

6.1 Our Services are provided to you on an “as is”, and “as available” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance, merchantability, fitness for a particular purpose, or title. You may have other statutory rights, but the duration of such statutory warranties, if any, shall be limited to the shortest period permitted by law. We will not be liable for delays, interruptions, service failures and other problems inherent with the use of the internet and electronic communications or other systems outside of our reasonable control. To the maximum extent permitted by law, we do not make any representation, warranty or guarantee that:

(a) the use of the Services will be secure, timely, uninterrupted or error-free;

(b) the Services will operate in combination with any other hardware, software, system, or data;

(d) any stored Data will be accurate or reliable or that any stored Data will not be lost or corrupted;

(e) errors or defects will be corrected; or

(f) the Services are free of viruses or other harmful components.

6.2 You warrant and agree that:

(a) you have reviewed these Terms including our Privacy Policy, which is available on the Site;

(b) you have all hardware, software and services which are necessary to access and use the Services;

(d) you will use the Services in accordance with these Terms;

(e) all information and documentation that you provide to us in connection with these Terms is true, correct and complete (including your User Account details) and you acknowledge and agree that we will rely on such information and documentation in order to provide the Services;

(f) you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Services to be provided in accordance with these Terms, at your cost, and for providing us with the necessary consents, licences, authorities and permissions; and

(g) you will maintain the confidentiality and security of any of your User Account and/or Account Holder details and passwords.

7 Intellectual Property Rights

Our Intellectual Property

7.1 All Intellectual Property in the Software and Services and that Intellectual Property developed, adapted, modified or created by us or our officers, employees, contractors, sub-contractors or agents including in connection with these Terms, the Software and the Services and any machine learning algorithms output from the Services, is and will remain owned exclusively by us or our third party service providers or licensors.

7.2 You must not, without our prior written consent:

(a) copy or use, in whole or in part, any of our Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(d) breach any Intellectual Property Rights connected with the Software or the Services, including altering or modifying any of our Intellectual Property;

(e) cause any of any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property;

(f) resell, assign, transfer, distribute or make available the Services to third parties;

(g) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; or

(h) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services or Software.

Your Intellectual Property

7.3 As between you and us, all Data is and remains your property or the property of the Account Holder (as applicable).

7.4 Licence: Where Data is your property, you grant us a limited licence to copy, transmit, store and back-up or otherwise access the Data during the Term solely to:

(a) supply the Services to you (including to enable you to access and use the Services) and your Account Holder;

(b) diagnose problems with the Services;

(d) develop other services, provided we de-identify the Data; and

(e) as reasonably required to perform our obligations under these Terms.

7.5 General: You must, at all times, ensure the integrity of any Data you input and that your use of the Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms.

7.6 We assume no responsibility or Liability for the Data. You are solely responsible for the Data and the consequences of using, disclosing, storing or transmitting it.

7.7 We have no obligation to monitor any content uploaded to the Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Services. We have no liability to you for removing your Data from the Services.

7.8 This clause will survive termination or expiry of these Terms.

8 Privacy

8.1 Our collection, use, disclosure and management of any Data you provide to us or that you input into the Services, including user and employee personal information, is managed in accordance with our Privacy Policy, which can be accessed at https://bodoworks.com/privacy-policy.

8.2 By using our Services, you acknowledge that you have read our Privacy Policy and that you consent to us collecting, using, disclosing and managing your Data as set out there.

9 Our Liability

9.1 Despite anything to the contrary, to the maximum extent permitted by law:

(a) our maximum aggregate Liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed in the aggregate for all claims, the amount paid by the Account Holder for the Subscription in the 12 months preceding the event which gives rise to the Liability; and

(b) we will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

9.2 Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:

(a) loss of, or damage to, any property or any injury to or loss to any person;

(b) failure or delay in providing the Services;

(d) unavailability, outage or interruption of the Computing Environment, where caused or contributed to by any:

(i) Force Majeure Event;

(ii) a fault, defect, error or omission in your Computing Environment or Company Data; or

(iii) your act or omission, and any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.

9.3 To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 7 (Intellectual Property), your use of the Services contrary to these Terms, including from any claim relating to the Data.

9.4 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.

9.5 You acknowledge and agree that:

(a) you are responsible for your use of the Services;

(b) you use the Services and any associated programs and files at your own risk;

(d) any information, recommendations, guidance or reports generated by the Services (Content) is general in nature and that the Content does not take into account your specific needs or circumstances. It is not advice, it does not constitute an express or implied warranty and you must not rely on it. We do not assume any liability for the accuracy, completeness, usefulness of any Content, or your reliance on any Content.

(e) the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;

(f) we may use third party service providers to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features;

(g) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;

(h) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;

(i) we are not responsible for the integrity or existence of any Data on the Computing Environment, network or any device controlled by you;

(j) from time to time, we may make certain services and/or features available to you for use which are still in their beta stage. These beta stage services have not been fully tested and are provided on an ‘as is’ basis; and, to the fullest extent permitted by Law, we make no representations, warranties or guarantees in relation to such beta stage services; and

(k) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

9.6 This clause will survive termination or expiry of these Terms.

10 Termination of your User Account and these Terms

10.1 You may only terminate your User Account and these Terms via your User Account management dashboard. You are solely responsible for properly terminating your User Account.

10.2 Your Account Holder may terminate your User Account and these Terms at any time in their sole discretion.

10.3 If your Account Holder’s Subscription is suspended or terminated, we will also suspend your User Account or terminate your User Account and these Terms (as applicable).

10.4 If we believe you are misusing the Services, or fail to pay any Fees owed for your use of the Services, we may immediately terminate your User Account and these Terms with notice to you.

11 Export

Our Software, products, technology and services may be subject to local and extraterritorial export control laws and regulations (Export Controls). You will comply with Export Controls governing use, export, re-export, and transfer of Software, products and technology and will obtain all required local and extraterritorial authorisations, permits or licenses.

12 Fees

12.1 You agree to pay the applicable Fees in advance directly to Atlassian as required to enable you and any User Account to access and use the Services. Payment of such Fees will be in accordance with the applicable Atlassian terms.

12.2 If you do not pay the Fees, as and when they are due, we shall have the right to terminate these Terms and terminate or suspend your access to our Services immediately, with notice to you.

12.2 We may, at any time and our sole discretion, amend our pricing structure or payment methods.[EO3]

13 General

13.1 We reserve the right at any time and from time to time to change or remove features of the Services.

13.2 Variation: We reserve the right to, at any time, update, amend or alter these Terms. If we make any change which we believe will have a material effect on you, we will give you notice of the changes, either via email or through your Account notifications. If you continue to use the Services after notice of these changes, you will be deemed to have accepted these changes. If you do not agree to the changes, you must stop using the Services.

13.3 Force Majeure: If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate your User Account and these Terms with notice to you.

13.4 Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).

13.5 Notices: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to us at the contact details below and to you on the contact details included in your User Account. A Party may change its notice details by written notice to the other Parties. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.

13.6 Publicity: You grant us the right to publish your company name, which has been provided to us by the Account Holder during registration or creation of the Account, and logo for the purposes of marketing and promotion of our Software and Services on our Site. You may retract this permission at any time, by emailing us on the email address set out below.

13.7 Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

13.8 Severance: If a provision of these Terms are held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

13.9 Assignment: We may assign, transfer or otherwise deal with all or any of our rights or obligations under these Terms without your prior written consent. You may not assign, transfer or otherwise deal with all or any of your rights or obligations under these Terms without our prior written consent. Any purported dealing in breach of this clause by you is of no force or effect.

13.10 Governing law: These Terms is governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts.

13.11 The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the laws (including Intellectual Property laws), other than the General Data Protection Regulation 2016/679 where applicable, of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.

13.12 This clause will survive termination or expiry of these Terms.

14 Definitions

The following words will mean:

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.

Computing Environment means your and/or your Account Holder’s computing environment including all hardware, software, information technology and telecommunications services and Systems;

Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with these Terms (whether involving a third party or a Party to these Terms or otherwise);

Data means the information, documents and other data provide by you to us or inputted by you, into the Software or stored by the Services or, subject to clause 11, generated by the Services as a result of your use of the Services;

Fees means the amount paid by the Account Holder for the Subscription to our products or Services.

Force Majeure Event means an event which is beyond a Party's reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person;

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names. Our Intellectual Property includes the Software;

Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act 1988 (Cth), General Data Protection Regulation (EU) 2016/679 and the Spam Act 2003 (Cth);

Liability means any loss, liability, cost, payment, damages, debt or expense (including reasonable legal fees);

Party means either party to these Terms; and

System means all hardware, software, networks and other IT systems used by a Party or the Account Holder from time to time, including a network.

Bodoworks Pty Ltd (ABN 37 643 240 377)

Email: support@bodoworks.com

Last update: 17 August 2020