End Client Agreement
1 Basis of agreement
(a) Devicie carries on the business of developing and commercialising the Solution and a Reseller is an authorised reseller of the Solution.
(b) An End Client can engage a Reseller to be provided the Solution and a Reseller may provide the End Client these terms and conditions and attached schedules (together, these Terms) which apply to the End Client’s use of the Solution.
(a) The Client will be taken to have accepted this agreement if the Client accesses or uses the Solution in any way after receiving or becoming aware of these Terms.
(b) If an End Client does not accept these Terms, the End Client must not access, use or otherwise view the Solution.
(c) In consideration of each party’s disclosure of Confidential Information and their respective undertakings under these Terms, and by accessing and utilising the Solution:
(i) the parties consent and agree to be bound by these Terms; and
(ii) the End Client represents and warrants that the End Client will comply with the scope and restrictions of its Licence.
(d) These Terms commence for an End Client on the date that End Client is granted access to the Solution by a Reseller and will continue until these Terms are terminated in accordance with clause 15 for the relevant End Client (Term).
(e) End Clients acknowledges that these Terms are limited to the specific rights and responsibilities outlined and that the terms and conditions related to the provision of the Solution will be governed by any agreement between an End Client and a Reseller.
(f) Unless otherwise expressly stated in these Terms, in the event of any inconsistency between these Terms and any agreement between an End Client and a Reseller relating to the Solution, these Terms shall prevail to the extent of any inconsistency.
3 How to read this agreement
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(b) in the definitions in clause 18 of this agreement.
4 The Solution
4.1 Hosting Services
Devicie will store End Client Materials using Microsoft Azure’s third party hosting service (Hosting Service), subject to the following terms:
(a) (hosting location) End Clients acknowledge and agree that Devicie uses storage servers to host the Solution through the Hosting Service’s cloud-based services, and where the service is available, we will host in Australia.
(b) (service quality) While Devicie has chosen a reputable hosting provider in Microsoft Azure, Devicie does not guarantee that the Hosting Service will be free from errors or defects or that End Client Materials will be accessible or available at all times.
(c) (security) Devicie will use its best efforts to ensure that End Client Materials are stored securely. However, Devicie does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to End Client Materials, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups and disaster recovery) In the event that Client Materials are lost due to a system failure (e.g. a database or webserver crash), we will use our best efforts to ensure contingency. However, Devicie cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
Devicie may from time to time, in its absolute discretion, install enhancements to the Solution, where such enhancements means any upgraded, improved, modified or new versions of the Solution (including any customisations made at an End Client’s request).
5 Use of Solution
5.1 Solution Licence
(a) During the Term, Devicie grants to an End Client non-exclusive, non-transferable, revocable and worldwide licences to use the Solution in accordance with this clause 5 (Licence).
(b) End Clients must only use the Solution for the purpose of the security and management of its devices (Purpose).
(c) End Clients must only use the Solution:
(i) in accordance with the limitations of the Purpose;
(ii) in a manner that is consistent and compliant with clause 6; and
(iii) in compliance with any other restrictions as determined by a Reseller and/or Devicie from time to time.
(a) Utilisation of the Solution is reliant on an integration of the Solution with an End Client’s Intune account via an Application Programming Interface (API Integration).
(b) The API Integration will facilitate the functionality of the Solution in providing Devicie the required access to be able to deploy the Solution as required and perform regular checks for number of active Licences.
(c) During the Term, an End Client must assist in facilitating the execution and maintenance of the API Integration.
5.3 Granting of Licence
(a) Upon commencement of the Term, Devicie will coordinate with an End Client to activate the relevant API Integration. This will trigger the activation and count of Licences on a ratio of 1-to-1 with existing Intune licences assigned to users (Number of Intune Licences).
(b) Licences remain active on an ongoing basis until the corresponding Intune licence held by an End Client is terminated, or this agreement is otherwise terminated in accordance with clause 15.
(c) End Clients acknowledge and agree that during the Term, the number of active Licences (Number of Licences) will be dependent on the Number of Intune Licences and can therefore increase or decrease from time to time.
6 End Client Obligations
6.1 General Obligations
During the Term, an End Client must:
(a) do all acts necessary to meet its obligations under this agreement;
(b) provide Devicie with all documentation, information and access to the End Client’s IT System and Personnel as reasonably required for the proper execution and functioning of the Solution; and
(c) maintain the IT System and internet connection as necessary for the proper functioning of the Solution.
6.2 Use of Solution
(a) End Clients must, and must ensure that all Users, comply with this agreement at all times.
(b) An End Client must not, and must not encourage or permit any User, Personnel or any third party to, without Devicie’s prior written approval:
(i) share their account information, including log in details or passwords, with any other person and that any use of an account by any person who is not the account holder is strictly prohibited;
(ii) use the Solution for any purpose other than the Purpose, including not using the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(iii) use the Solution in a way which infringes the Intellectual Property Rights of Devicie or any third party;
(iv) make copies of the Documentation or the Solution;
(v) adapt, modify or tamper in any way with the Solution;
(vi) remove or alter any copyright, trade mark or other notice on or forming part of the Solution or Documentation;
(vii) create derivative works from or translate the Solution or Documentation;
(viii) publish or otherwise communicate the Solution or Documentation to the public, including by making it available online or sharing it with third parties;
(ix) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Solution or Documentation to any third party, except in the course of granting a sub-licence to an End Client’s Personnel in the ordinary course of using the Solution;
(x) decompile or reverse engineer the Solution or any part of it, or otherwise attempt to derive its source code;
(xi) attempt to circumvent any technological protection mechanism or other security feature of the Solution; or
(xii) breach any applicable Laws (including any applicable privacy laws) in using the Solution.
(c) End Clients acknowledge and agree:
(i) that Devicie will have no liability for any act of a User for damage, loss or expense suffered by an End Client or a User in connection with the use of the Solution and will indemnify Devicie for any such damage, loss or expense; and
(ii) to notify Device without delay whenever it becomes aware of any case of a breach of this clause 6 or otherwise any illegal or unauthorised use of the Solution.
7 IT System Integration
(a) End Clients acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. Devicie cannot guarantee that integration processes between the Solution and the IT System will be free from errors, defects or delay.
(b) End Clients agree that Devicie will not be liable for the functionality of the IT System, including any third party software, or for the functionality of the Solution if an End Client integrates it with third party software, or changes or augments the Solution, including by making additions or changes to the Solution.
(c) If an End Client adds third party software or software code to the Solution, integrates the Solution with third party software, or makes any other changes to the Solution (End Client Solution Changes), then:
(i) the End Client acknowledges and agrees that End Client Solution Changes can have adverse effects on the Solution;
(ii) the End Client indemnifies Devicie in relation to any loss or damage that arises in connection with an End Client Solution Changes;
(iii) Devicie will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Software Change;
(iv) Devicie may require the End Client to change or remove End Client Solution Changes or allow Devicie to change or remove an End Client Solution Changes, at Devicie’s discretion, and if Devicie does so, the End Client must act promptly;
(v) Devicie may suspend the End Client’s access to the Solution until the End Client has changed or removed End Client Solution Changes; and/or
(vi) Devicie may change or remove any End Client Solution Changes, in its absolute discretion. Devicie will not be liable for loss of data or any other loss or damage an End Client may suffer in relation to Devicie’s amendment to, or removal of, any User Software Change.
8 Third Party Terms and Conditions
End Clients acknowledge and agree that:
(a) the Solution is reliant on third party providers and platforms, including Intune (Third Party Services);
(b) use of the Solution is subject to the terms and conditions of such Third Party Services (Third Party Terms); and
(c) Devicie will not be liable for any loss or damage suffered by an End Client or its Users in connection with such Third Party Services and/or Terms.
9 Intellectual property
9.1 End Client Materials
(a) End Clients grant to Devicie (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use an End Client Materials to the extent reasonably required to provide the Solution.
(b) End Clients
(i) warrant that Devicie’s use of End Client Materials as contemplated by these Terms will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify Devicie from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
9.2 Devicie IP
(a) Unless otherwise agreed in writing, an End Client will not under these Terms acquire Intellectual Property Rights in any Devicie IP or Developed IP. Any Developed IP will be solely and exclusively owned by Devicie.
(b) Devicie grants to End Clients a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Devicie IP and any Developed IP to the extent required for an End Client to use, enjoy the benefit of or exploit the Solution.
For the purposes of this clause 9:
(a) “Developed IP” means any materials produced by Devicie in the course of providing the Solution including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with an End Client or others, and any Intellectual Property Rights attaching to those materials.
(b) “Devicie IP” means all materials owned or licensed by Devicie that is not Developed IP and any Intellectual Property Rights attaching to those materials.
(a) Except as contemplated by these Terms, a party must not and must not permit any of its Personnel or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by Devicie to its Personnel for the purposes of providing the Solution or fulfilling its obligations under this agreement.
(c) If either party becomes aware of a suspected or actual breach of this clause 10 by that party, its Personnel or related companies, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.
12.1 Mutual Warranties
Both parties represent and warrant to the other party each of the following statements is true, accurate and not misleading at the date of this agreement:
(a) it has the power to enter into and perform its obligations under these Terms and to carry out the transactions contemplated by these Terms;
(b) it has taken all necessary action to authorise its entry into and performance of these Terms and to carry out the transactions contemplated by these Terms; and
(c) its obligations under these Terms are valid and binding and enforceable against it in accordance with their terms.
(a) Devicie does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to End Client Materials or the IT System arising in connection with use of the Solution.
(b) End Clients must take their own precautions to ensure that the process which it, or its Users, employ for accessing the Solution does not expose them to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
12.3 Exclusion of other warranties
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.
(b) To the extent Devicie provides the Solution to, or performs any services for, an End Client under this agreement (Deliverables), the Deliverables are provided on an “as is” basis and Devicie makes no warranty that the Deliverables will:
(i) be free or substantially free of errors, bugs, defects or viruses; or
(ii) operate without any significant downtime or other interruption.
12.4 Non-Excludable Terms
(a) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, an End Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
(b) Where any law implies a condition, warranty or guarantee into this agreement which may not lawfully be excluded by Devicie, then to the maximum extent permitted by applicable law, Devicie’s liability for breach of that non-excludable condition, warranty or guarantee will, at Devicie’s option, be limited to:
(i) in the case of goods, their replacement or the supply or equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
13 Limitation of Liability
(a) (Limitation of liability) ) To the maximum extent permitted by applicable law, Devicie limits all liability in aggregate of all claims to the End Client (and any third parties who encounter the services or goods through the End Client’s business) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by Devicie to AU$1,000 in aggregate.
(b) (Indemnity) Both parties (Indemnifying Party) indemnify the other party and its Personnel in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the End Client’s business) arising from the Indemnifying Party’s or their Personnel’s:
(i) breach of any term of this agreement; or
(ii) negligent, wilful, fraudulent or criminal act or omission.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will either party be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Devicie (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
14 Modern Slavery
(a) Devicie will take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in performing its obligations under this agreement.
(b) If at any time Devicie becomes aware of Modern Slavery practices in the operations and supply chains used in the performance of its obligations under this agreement Devicie will, as soon as reasonably practicable, take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains.
15.1 Automatic Termination
These Terms will be automatically terminated, and an End Client’s Licences will be immediately revoked, if the agreement between Devicie and a Reseller to provide the Solution to the relevant End Client expires, is terminated or otherwise comes to an end.
15.2 Termination by Devicie or Reseller
A Reseller or Devicie may terminate these Terms immediately by notice to an End Client if:
(a) the End Client is in breach of any term of these Terms; or
(b) then End Client commits, or Devicie or a Reseller reasonably suspects that the End Client may commit, any breach of these Terms.
15.3 Effect of expiry or termination
In the event of expiry or termination of these Terms:
(a) an End Client must:
(i) immediately cease using the Solution; and
(ii) maintain the API Integration for 10 Business Days after termination to allow for Devicie to remove the Solution and its Materials from the IT System,
(b) all Licences granted under this agreement are terminated; and
(c) the End Client and its Users will no longer have access to the Solution or any End Client Materials and Devicie will not be responsible to the End Client or its Users for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of the End Client or its Users no longer being able to access the Solution or End Client Materials as a result of termination.
15.4 Accrued rights and liabilities
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
16 Dispute Resolution
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory injunction, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
17.1 Governing Law and Jurisdiction
These Terms is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
17.3 Further acts and documents
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.
An End Client cannot assign, novate or otherwise transfer an End Client’s rights or obligations under these Terms without Devicie’s prior consent.
17.5 Entire Agreement
These Terms embodies the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these Terms.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) person) a reference to “person” or “an End Client” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.
In these Terms the following phrases have the meaning set out below:
Confidential Information Information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
End Client Any person or entity who enters into an agreement with a Reseller to be provided the Solution and executes these Terms.
End Client Materials Files, documents, data or any other Materials, which is uploaded or inserted to the Solution, or otherwise provided to Devicie, by an End Client or its User, including any Intellectual Property Rights attaching to those Materials.
Devicie Devicie Pty Ltd ABN 84 638 067 188.
Documentation All manuals, help files and other documents supplied by Devicie to an End Client relating to the Solution, whether in electronic or hardcopy form.
Intellectual Property Rights All copyright, trade mark, design, patent, semiconductor and circuit laan End Client rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.
Intune The Microsoft Corporation cloud-based mobile device management (MDM) and mobile application management (MAM) service.
IT System Means an End Client’s hardware, software, data communications lines, servers, network and telecommunications equipment and internet-related information technology infrastructure, including computers, laptops and phones.
Laws Any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where a party performs its respective obligations under this agreement or the Solution is made or received and includes any industry codes of conduct.
Licence Has the meaning given in clause 5.1(a).
Material Tangible and intangible information, documents, reports, formulas, specifications, inventions, data and other materials in any media whatsoever.
Modern Slavery Has the same meaning as it has in the Modern Slavery Act 2018 (Cth).
Personal Information Information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Personnel In relation to a party, its representatives, employees, secondees, agents and subcontractors, including employees and contractors of subcontractors.
Reseller An organisation which Device has entered into an agreement with to resell the Solution that has agreed to provide the Solution to an End Client.
Reseller Agreement The agreement entered into by a Reseller and Devicie relating to the provision of the Solution to End Clients.
Solution The automated end-user device security and management solution developed and commercialised by Devicie as described in a Reseller Agreement.
User An End Client, its Personnel and any other third party who is a user of the Solution who has been granted access by an End Client.