1.1. We hereby grant to you during the Term specified a worldwide, non-exclusive licence to use the software in accordance with the documentation, subject to the limitations and prohibitions set out and referred to in this Clause 1.
1.2. You may not sub-license and must not purport to sub-license any rights granted under Clause 1.1 without Sensei’s prior written consent.
1.3. Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 1 shall be subject to the following prohibitions:
- a. you must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the software;
- b. you must not alter, edit or adapt the software; and
- c. you must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the software.
1.4. You shall be responsible for the security of copies of the software supplied to you under this EULA (or created from such copies) and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.
2.1. Nothing in this EULA shall give to the End User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
3.1. We shall provide Updates and Upgrades to the End User during the Term.
3.2. We shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in our industry.
3.3. As updates and upgrades are provided on a shared, hosted platform, all updates and upgrades must be accepted by You. A roadmap for anticipated updates and upgrades is made available and periodically updated at http://docs.sensei.cloud/solutions/roadmap.html
3.4. Not used
4.1. You may elect to opt-in to Sensei’s Customer Care support services provision. If so, we will provide break-fix support of the Software and other Support Services, as outlined within the relevant Sensei Customer Care proposal.
4.2. The charges for the Support Services are outlined within the relevant Sensei Customer Care proposal.
4.3. Support Services provided are subject to the SLAs as outlined within the relevant Sensei Customer Care proposal.
4.4. If you elect not to opt-in to Sensei’s Customer Care Support Services provision, any Support Services required during the term are subject to availability of Sensei resources and additional charges as agreed between Us and You.
5.1. You acknowledge that nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from us to you, or from the you to us.
6.1. The End User shall pay the Charges to Sensei in accordance with this EULA.
6.2. All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated exclusive of GST.
6.3. The End User shall continue to pay the Charges to Sensei as outlined in this EULA, unless:
- a. This EULA is terminated in accordance with Clause 12; or
- b. The End User provides 30 days written notice to Sensei, following the conclusion of the Term stating that you do not wish to extend the Term.
6.4. NOT USED
7.1. You must pay us the Fees in accordance with the provisions of the Payment Terms.
7.2. Subject to clause 3.3, payment of Fees must not be refused or delayed.
7.3. If a genuine dispute arises regarding the amount of a Fee, You may suspend payment of the disputed amount pending resolution of the dispute but You must pay all other amounts in accordance with the Payment Terms.
7.4. If You fail to pay any amount to Us by the due date on a properly rendered invoice, You must pay interest on the amount due calculated from the due date until the date of payment at a rate which is equivalent to the prevailing Reserve Bank of Australia cash rate.
7.5. If any new or varied tax is introduced (other than on Our income) which increases Our costs or reduces Our profit in providing the Software, Maintenance Services or Support Services, we may make an appropriate adjustment to our Fees.
7.6. Unless otherwise stated, any Fees quoted within this proposal are exclusive of expenses for travel outside of Melbourne, Sydney, Adelaide or Brisbane CBD. If expenses are reasonably incurred for travel outside of these areas, these will be invoiced to You on a weekly basis as reasonably incurred.
- 7.6.1. The expenses referred to in this clause 7.6 may include, but are not exclusive to, airfares, accommodation, per diem daily expenses, taxi fares, and car parking allowances.
7.7. With regards to GST;
- 7.7.1. Unless stated otherwise, each consideration or payment obligation in this Agreement is exclusive of GST.
- 7.7.2. “GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- 7.7.3. We must fulfil our legal requirements pertaining to GST as outlined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8.1. Sensei warrants to the End User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
8.2. We warrant to the End User that:
- a. the Software as provided will conform in all material respects with the Software Specification;
- b. the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
- c. the Software shall incorporate security features reflecting the requirements of good industry practice.
8.3. We warrant to the End User that the Software, when used by the End User in accordance with this EULA, will not breach any laws, statutes or regulations applicable under Australian law.
8.4. We warrant to the End User that the Software, when used by the End User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
8.5. If Sensei reasonably determines, or any third party alleges, that the use of the Software by the End User in accordance with this EULA infringes any person’s Intellectual Property Rights, Sensei may, at its own cost and expense:
- a. modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or
- b. procure for the End User the right to use the Software in accordance with this EULA.
8.6. The End User warrants to Sensei that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
8.7. All of the parties’ warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
9.1. The End User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, and excluding the warranty provisions outlined in Clause 8.2, Sensei gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
9.2. The End User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, and excluding the warranty provisions outlined in Clause 8.2, Sensei gives no warranty or representation that the Software will be entirely secure.
9.3. The End User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and Sensei does not warrant or represent that the Software will be compatible with any other software.
9.4. The End User acknowledges that Sensei will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, Sensei does not warrant or represent that the Software or the use of the Software by the End User will not give rise to any legal liability on the part of the End User or any other person.
9.5. The End User acknowledges and agrees that Sensei may use and keep diagnostic telemetry data for the explicit purposes of keeping the Software secure and up-to-date, detecting, diagnosing and remediating problems, and for other Software product improvement initiatives. The End User also acknowledges and agrees that such telemetry data may be used for user engagement reporting back to the End User.
9.6. Sensei warrants that:
- a. The telemetry data outlined in Clause 9.5 is anonymous and does not identify individual users; and
- b. The telemetry data outlined in Clause 9.5 will not be divulged to 3rd parties or any individual other than Sensei employees.
10.1. Sensei shall indemnify and shall keep indemnified the End User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the End User and arising directly or indirectly as a result of any breach by Sensei of this EULA (a “Licensor Indemnity Event“).
10.2. The End User must:
- a. upon becoming aware of an actual or potential Licensor Indemnity Event, notify Sensei;
- b. provide to Sensei all such assistance as may be reasonably requested by us in relation to the Licensor Indemnity Event;
- c. allow us the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
- d. not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of Sensei.
10.3. The End User shall indemnify and shall keep indemnified Sensei against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Sensei and arising directly or indirectly as a result of any breach by the End User of this EULA (a “User Indemnity Event“).
10.4. Sensei must:
- a. upon becoming aware of an actual or potential User Indemnity Event, notify the End User;
- b. provide to the End User all such assistance as may be reasonably requested by the End User in relation to the User Indemnity Event;
- c. allow the End User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and
- d. not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the End User.
10.5. The indemnity protection set out in this Clause 10 shall be subject to the limitations and exclusions of liability set out in this EULA.
11.1. Nothing in this EULA will:
- a. limit or exclude any liability for death or personal injury resulting from negligence;
- b. limit or exclude any liability for fraud or fraudulent misrepresentation;
- c. limit any liabilities in any way that is not permitted under applicable law; or
- d. exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
11.2. The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this EULA:
- a. are subject to Clauses 11.1 and 14.6; and
- b. govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
11.3. Sensei will not be liable to the End User in respect of any losses arising out of a Force Majeure Event.
11.4. Sensei will not be liable to the End User in respect of any loss of profits or anticipated savings.
11.5. Sensei will not be liable to the End User in respect of any loss of revenue or income.
11.6. Sensei will not be liable to the End User in respect of any loss of business, contracts or opportunities.
11.7. Sensei will not be liable to the End User in respect of any loss or corruption of any data, database or software.
11.8. Sensei will not be liable to the End User in respect of any problems arising from issues in the underlying Microsoft platform or any third-party software dependencies.
11.9. Sensei will not be liable to the End User in respect of any special, indirect or consequential loss or damage.
11.10. The liability of Sensei to the End User under this EULA in respect of any event or series of related events shall not exceed the total amount paid and payable by the End User to Sensei under this EULA in the 12 month period preceding the commencement of the event or events.
11.11. The aggregate liability of Sensei to the End User under this EULA shall not exceed the total amount paid and payable by the End User to Sensei under this EULA.
12.1. Sensei may terminate this EULA by giving to the End User not less than 7 days’ written notice of termination expiring at the end of any calendar month.
12.2. The End User may terminate this EULA by giving to Sensei not less than 7 days’ written notice of termination expiring at the end of any calendar month.
12.3. Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
- a. the other party commits any material breach of this EULA, and the breach is not remediable;
- b. the other party commits a material breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
- c. the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach)
12.4. Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
- a. the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- b. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- c. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA); or
- d. if that other party is an individual:
- that other party dies;
- as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
- that other party is the subject of a bankruptcy petition or order.
12.5. Sensei may terminate this EULA immediately by giving written notice to the End User if:
- a. any amount due to be paid by the End User to Sensei under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
- b. Sensei has given to the End User at least 30 days’ written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 12.5.
12.6. A default committed under this EULA shall be considered a default under all contractual arrangements between the End User and Sensei.
13.1. Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 2, 5, 7.2, 7.4, 9, 10, 11, 13, and 14.
13.2. Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.
13.3. Within 7 days following the termination of this EULA for any reason:
- a. the End User must pay to Sensei any Charges in respect of Services provided to the End User before the termination of this EULA and in respect of licences in effect before the termination of this EULA; and
- b. Sensei must refund to the End User any Charges paid by the End User to Sensei in respect of Services that were to be (but are not) provided to the End User after the termination of this EULA and in respect of licences that were to be (but are not) in effect after the termination of this EULA, without prejudice to the parties’ other legal rights.
13.4. For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the End User must immediately cease to use the Software upon the termination of this EULA.
13.5. NOT USED 13.6. Sensei will retain End User’s data stored in as part of the Software in a limited function account as encrypted, unidentifiable data after expiration or termination of End User’s subscription. After the termination of this EULA, Sensei will disable End User’s account and may delete the Software data.
13.7. Sensei has no liability for the deletion of Software data as described in Clause 13.6.
14.1. In this Clause 14: “Confidential Information” means:
- a. any technical and non-technical information related to the discloser’s business and current, future, and proposed products and services of discloser, including for example and without limitation, information concerning discloser’s research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans, and business plans, and
- b. any information discloser has received from others and which discloser is obligated to treat as confidential or proprietary. “Discloser” means in relation to Confidential Information disclosed under the terms of this Agreement, the party so disclosing. “Recipient” means in relation to Confidential Information received under the terms of this Agreement, the party so receiving.
14.2. Recipient will not use, disseminate or disclose any of discloser’s Confidential Information to any person, firm or business, except to the extent necessary for internal evaluations in connection with negotiations, discussions and consultations with discloser regarding the proposed transaction. Furthermore, neither party may disclose the existence of any negotiations, discussions or consultations in progress between the parties to any form of public media without the prior written approval of the other party. Recipient will treat all of discloser’s Confidential Information with the same degree of care as recipient accords to recipient’s own confidential information, but in no case will recipient use less than reasonable care. Recipient will disclose discloser’s Confidential Information only to those of recipient’s employees, consultants and contractors who have a need to know such information and who have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Recipient under this Agreement. Recipient will immediately give notice to discloser of any unauthorised use or disclosure of discloser’s Confidential Information. Recipient will assist discloser in remedying any such unauthorised use or disclosure of discloser’s Confidential Information.
14.3. Recipient’s obligations under Clause 5.9.2 will not apply to any Confidential Information that recipient can document:
- a. was in the public domain at or subsequent to the time such Confidential Information was communicated to recipient by discloser through no fault of recipient,
- b. was rightfully in recipient’s possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated to recipient by discloser, or
- c. was developed by employees, contractors or agents of recipient independently of and without reference to any Confidential Information.
14.4. A disclosure by recipient of any of Discloser’s Confidential Information:
- a. in response to a valid order by a court or other governmental body
- b. as otherwise required by law, or
- c. necessary to establish the rights of either party under this Agreement, will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that recipient will provide prompt prior written notice thereof to discloser to enable discloser to seek a protective order or otherwise prevent such disclosure.
14.5. All of discloser’s Confidential Information is the property of discloser and no license or other rights to such Confidential Information is granted or implied hereby. In addition, all materials furnished to recipient by discloser (whether or not they contain or disclose discloser’s Confidential Information) are the property of discloser. Within five (5) days after any request by discloser, recipient will destroy or deliver to discloser, at discloser’s option:
- a. all such discloser-furnished materials, and
- b. all materials in recipient’s possession or control (even if not furnished by discloser) that contain or disclose any of discloser’s Confidential Information. Recipient will provide discloser with written certification of recipient’s compliance with its obligations under this clause.
14.6. All Confidential Information is provided “as is” and without any warranty, express, implied or otherwise, regarding the accuracy or performance of any disclosed Confidential Information.
14.7. Recipient will obtain any licenses or approvals the Australian government or any agency thereof requires prior to exporting, directly or indirectly, any technical data acquired from discloser pursuant to this Agreement or any product utilising any such data.
14.8. A breach by recipient of this Clause 14 will cause irreparable and continuing damage to discloser for which money damages are insufficient, and discloser will be entitled to injunctive relief, a decree for specific performance, and such other relief as may be proper (including money damages, if appropriate).
15.1. No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
15.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
15.3. This EULA may not be varied except by a written document signed by or on behalf of each of the parties.
15.4. Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this EULA.
15.5. This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
15.6. Nothing in this EULA shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.
15.7. Subject to Clauses 11.1 and 14.6, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
15.8. This EULA shall be governed by and construed in accordance with Australian law.
15.9. Dispute Resolution
- a. The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC).
- b. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the dispute is referred to ADC (the Guidelines).
- c. The terms of the Guidelines are hereby deemed incorporated into this agreement.
- d. In the event that the dispute has not settled within twenty-eight (28) days following referral to ADC, or such other period as agreed to in writing between the parties, the dispute shall be referred to expert determination in South Australia.
- e. The expert determination shall be administered by ADC and conducted in accordance with the ADC Rules for Expert Determination operating at the time the dispute is referred to ADC (the Rules).
- f. The terms of the Rules are hereby deemed incorporated into this agreement.
- g. The expert shall not be the same person as the mediator unless the parties each consent in writing to the expert so acting.
- h. This clause shall survive termination of this agreement
16.1. In this EULA, a reference to a statute or statutory provision includes a reference to:
- that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- any subordinate legislation made under that statute or statutory provision.
16.2. The Clause headings do not affect the interpretation of this EULA.
16.3. In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Except to the extent expressly provided otherwise, in this EULA:
“Charges” means those amounts that the parties have agreed in writing shall be payable by the End User to Sensei in respect of this EULA;
“Documentation” means the documentation for the Software produced by Sensei and delivered or made available by Sensei to the End User];
“EULA” means this End User licence agreement, including any amendments to this End User licence agreement from time to time;
“Fees” means those amounts that the parties have agreed in writing shall be payable by the End User to Sensei in respect of this EULA;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Licensor Indemnity Event” has the meaning given to it in Clause 10.1;
“Maintenance Services” means the supply to the End User and application to the Software of Updates and Upgrades;
“Payment Terms” means the lesser of 30 days from the date of issue on a correctly rendered invoice from Us to You, or the terms specified within the proposal or contract agreed between two parties;
“Services” means any services that Sensei provides to the End User, or has an obligation to provide to the End User, under this EULA;
“Software” means the software as outlined in the Agreement Details section of this EULA;
“Software Defect” means a failure of the Software to conform with the Software Specification, but excluding any defect, error or bug caused by or arising as a result of:
- a. any act or omission of the End User or any person authorised by the End User to use the Software;
- b. any use of the Software contrary to the Documentation by the End User or any person authorised by the End User to use the Software;
- c. a failure of the End User to perform or observe any of its obligations in this EULA; and/or
- d. an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
“Software Specification” means the specification for the Software set out on Docs.Sensei.Cloud;
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
“Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;
“Term” means the term of this EULA, commencing in accordance with Clause 3.1 and ending 12 months thereafter, unless otherwise agreed in writing between the parties.;
“Update” means a hotfix, patch or minor version update to the Software;
“Upgrade” means a major version upgrade of the Software;
“User Indemnity Event” has the meaning given to it in Clause 10.3.