(a) ‘Agreement’ or ‘EULA’ means this document including all schedules to it;
(b) ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in the State of New South Wales;
(c) ‘Confidential Information’ means:
(d) ‘Data Presentation Standard’ refers to the instruction guide provided to you describing how to provide and format the image data to the Owner for the purpose of model training for your location,
(e) ´Device´ means a single personal computer (PC) or laptop used solely by you.
(f) ‘Error’ means any defect or harmful feature such as an error, omission, fault, virus, bug or any functionality which may result in corruption of, loss of or damage to property, systems or data,
(g) `Generated Content´ means content generated, created, made or otherwise brought about as a result of using the Software and/or Services and includes data and training models produced by the Software
(h) ´Government Agency´ means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange,
(i) ‘Intellectual Property’ includes:
(j) ‘Owners’ means the Department of Primary Industries being a part of the Department of Industry ABN 72 189 919 072, the University of New England ABN 75 792 454 315 and Invasive Animals Ltd ABN 33 114 965 276 or any successor/s in title;
(k) ‘Personal Information’ has the meaning given in the Privacy and Personal Information Protection Act 1998 (NSW) and any other Privacy Laws;
(l) ‘Privacy Laws’ means the any law regarding the protection of personal information which is applicable to either of the parties, a Permitted Third Party or the Data, and includes the Privacy and Personal Information Protection Act 1998 (NSW);
(m) ´Services´ means services offered by the Owners by means of the Software from time to time;
(n) ´Software´ means the ‘ClassifyMe’ software application licensed by the Owners for use on compatible Devices;
(o) ´Update´ means an update supplied by the Owners that replaces or supplements the original Software;
(p) headings and italicised, highlighted or bold type do not affect the interpretation of this EULA
(q) the singular includes the plural and the plural includes the singular;
(r) other parts of speech and grammatical forms of a word or phrase defined in this EULA have a corresponding meaning
(s) a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality
(t) a reference to a document (including this EULA) includes all amendments or supplements to, or replacements or novations of, that document;
(u) a reference to a party to any document includes that party’s successors and permitted assigns;
(v) a reference to an agreement other than this EULA includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
(w) a reference to a document includes any agreement or contract in writing, or any certificate, notice, deed, instrument or other document of any kind;
(x) a provision of this EULA may not be construed adversely to a party solely on the ground that the party (or that party’s representative) was responsible for the preparation of this EULA or the preparation or proposal of that provision;
(y) a reference to a body, other than a party to this EULA (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
(z) the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in this EULA do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary;
(aa) a reference to ‘$’, ‘A$’, ‘AUD’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia;
(bb) a reference to time is to time in Sydney, New South Wales, Australia;
(cc) if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;
(dd) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and
(ee) if anything under this EULA is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.
(a) Subject to the terms of this EULA, the Owners grant you a non-exclusive, non-transferable licence to use the Software on a single Device.
(b) Acceptance of the terms of the EULA include the provision of camera trap image data by you to the Owners consistent with the Data Presentation Standard provided for the purpose of Software training.
(a) Subject to clause 10, the licence granted to you by clause 3.1 is granted for the duration you have the Software installed on the Device.
(a) You must not rent, lease, lend, sell, transfer, redistribute or sublicense the Software, or make the Software available over a network where it could be used by multiple Devices at the same time. If you sell or otherwise dispose of, transfer or assign any Device containing the Software, any copies of the Software must be removed before doing so.
(b) Other than as expressly provided in this EULA or otherwise permitted by law, you must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, or any part thereof.
(a) The Owners retain all right, title and interest to all Intellectual Property rights subsisting in the Software, any Updates, and any part thereof.
(a) You acknowledge and agree that the Owners
(a) In order to obtain, install, update, access, use or continue to access or use the Software and/or Services, you may also be required to update third party software (such as the operating system) on your Device.
(a) The Owners are not responsible for such third party updates,
(b) Such third party updates may be subject to their own terms and conditions, which the Owners strongly recommend you review prior to implementing the third party updates, and
(c) If you are unable or unwilling to obtain or install such third party updates, you may be unable to obtain , install, update, access, use, or continue to access or use the Software and/or Services.
(a) Subject to availability, Services provided through the Software may require you to complete and submit information on an on-line form located at https://classifymeapp.com, and/or to troubleshoot and/or update advice and instructions that have been provided to you.
(b) You will be granted access to the Software upon provision of image data to the Owners (consistent with the Data Presentation Standard) for the training of the Software,
(c) You will only be granted access to your location specific Model for use in the Software unless otherwise advised by the Owners,
(d) The Owners may modify or cease to offer the Services, or any part thereof, at any time without prior notice to you.
(a) You acknowledge and agree that you use the Services at your own risk.
(b) To the extent permitted by law, the Owners do not accept liability for any claims or losses arising directly or indirectly from,
(a) In order to use the Software and-or the Services, or parts thereof, you will be required to create a user account by completing an on-line form at https://classifymeapp.com.
(b) The Owners may require additional personal information (including but not limited to your name, email address, mobile phone number and agency) to verify your identity, to facilitate your use and access to the Software and Services and your account.
(c) The Owners may require you to provide certain information about you which will be held by the Owners in order to create your account and provide the Services.
You must ensure that
(a) No more than one user account is registered per licensed copy of the Software,
(b) You do not register multiple user accounts, as an individual is only permitted to have a single user account on any device, and
(c) You do not allow anyone else to use your user account.
(a) You are responsible for protecting the confidentiality of your password.
(b) You acknowledge and agree that you will be responsible for all activity involving your account.
(c) The Owners may require you to change your password if the Owners suspect the security of your account has been breached, and you agree to do so when requested.
(a) You agree to promptly update your account details when any of your contact details (including email address or mobile phone number) change. You will be liable for any unauthorised access or use of your account which result from your failure or delay in notifying the Owners of any change to your contact details.
You warrant and represent that the following statements are true and correct to the best of your knowledge:
(a) You are not a resident of a country that is subject to an embargo by the Commonwealth of Australia, and
(b) You are not included on any list of prohibited or restricted parties by the Commonwealth of Australia.
7.2 Third party services
(a) You may be required to access, install and use certain third party services in order to obtain, install, update, access, use, or continue to access or use the Software and-or Services.
(b) Access to the Software and/or Services, or parts thereof, may require your Device to be connected to the internet or require other third party services.
(c) Your use of third party services may be subject to fees and separate terms and conditions and you acknowledge that the Owners are not liable for the activities of or payment to such third parties.
(d) You must comply with any applicable third party terms of agreement when using the Software and/or Services. You agree that the Owners are not responsible for ensuring that your installation and use of the Software and/or Services do not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.
(e) The Software and Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may or may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by the Owners of the third party content or services provide by them, and that your use of any third party content or services may be subject to separate terms and conditions.
You agree that you will not
(a) Attempt to disrupt the normal operation of the ‘ClassifyMe’ Application or the Software or Services, or any infrastructure operated by the Owners or other business activities of the Owners.
(b) Attempt to gain unauthorised access to the Software and/or the Services.
(c) Make any use of the Software and/or the Services by granting access to a third party without the Owners’ consent.
(d) Make use of the Software and/or the Services on more than 1 device per person.
(e) Impersonate any other person in using the Software and/or Services.
(f) Use the Software and/or the Services in connection with the actual or attempted contravention of any applicable laws including International laws on poaching or the illegal trade in wildlife.
Unless otherwise specified in this EULA or agreed pursuant to a separate written agreement between you and the Owners, the Owners will not be obligated to support the Software or the Service, whether by providing advice, training, troubleshooting, modifications, Updates, new releases or enhancements or otherwise, or to provide any hosting, telecommunications, internet or other services in relation to the use of the Software or the Services by you.
(a) The Owners may immediately terminate the EULA without notice to you if you are in breach of any term of this Agreement.
(b) The Owners may terminate the EULA if they decide to withdraw the Software from the market (in which case the Owners will endeavour to give you at least 14 days’ notice before doing so).
(c) You may terminate this EULA at any time by deleting the Software from your Device.
(d) Upon termination howsoever carried out, you agree to immediately delete the Software from your Device and any remaining copies of the Software and any associated documentation or otherwise return or dispose of such material in the manner directed by the Owners.
(e) Termination pursuant to this clause will not affect any rights or remedies which a party may otherwise have under this Agreement or at law.
(f) The Owners may suspend your access to the Software of Services without notice to you where the Owners reasonably believe your access should be suspended, including but not limited to where:
(g) If the Owners have the right to terminate the EULA pursuant to this clause 10, they may instead, at their option:
(h) Nothing in this clause 10 limits any right the Owners may have pursuant to this EULA to modify the Software by way of Update, including by removing or amending any features or functionality of the Software, or to modify or cease offering the Services or any part thereof.
(a) You acknowledge that the Software and Services cannot be guaranteed to be error free and further acknowledge that the existence of any such error or errors will not constitute a breach of this EULA.
(b) Except as expressly provided to the contrary in this EULA and to the full extent permitted by applicable law, the Owners will not be liable to you for any loss, including special, indirect or consequential damages (such as loss of profits) or claim, arising out of a breach of this EULA or arising out of the supply of defective Software or Services.
(c) To the full extent permitted by applicable law, the Owners’ liability for breach of any term, condition, guarantee or warranty that is implied by law and cannot be lawfully be excluded by the Owners, including the consumer guarantees set out in the Australia Consumer law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations is limited to (at the Owners option):
(d) Without limiting or affecting any other provision of this EULA, to the full extent permitted by law, the Owners maximum aggregate liability to you for any loss, damage, liability or expense you incur or claims you make against the Owners in connection with this EULA is limited to the sum of AUD$10.00.
(e) You acknowledge that you have exercised your independent judgment in acquiring the Software and the Services and have not relied upon any representation made by the Owners which has not been stated expressly in this EULA nor upon any descriptions or illustrations or specifications contained in any document other than this EULA including catalogues or publicity material produced by the Owners.
(f) You will indemnify the Owners against all liabilities, costs, losses, expenses which the Owners may suffer or incur in connection with any third party claims or allegations against the Owners that are caused by your breach of this EULA.
This EULA does not constitute a transfer or conveyance of any Intellectual Property owned by the Owners as at the date of this EULA, including but not limited to all Intellectual Property associated with the Software and the Services, and its functionality, features and content. Nor does this EULA operate as a future transfer of any Intellectual Property owned by the Owners any time thereafter.
You acknowledge that this EULA and the Software and Services and all materials that may be provided to you are protected by copyright and may also be protected as other forms of Intellectual Property owned by the Owners. You will not during or at any time after the termination of this EULA undertake or permit any act which infringes or attempts to infringe the Owners’ Intellectual Property rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the Software except as otherwise expressly authorised by this EULA.
You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile or otherwise attempt to discover any source code or the whole or any part of the Software or Services or any output from the Software of any files related to the Software of the Services.
The Software and/or the Services may allow you to create Generated Content. To the extent that any Generated Content created by you gives rise to any Intellectual Property rights, you will retain ownership of these, and you hereby automatically grant the Owners a worldwide, perpetual, irrevocable, royalty free, fee free, fully transferable and sub/licensable licence to use, adapt, exploit and modify this Generated Content in any way and for any purpose, without compensation to you. You further consent to the Owners and its successors, assigns and licensees doing anything in respect of the Generated Content which would, but for this consent, infringe your moral rights.
(a) Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst the Owners strive to protect such information and keep your Personal Information confidential, it does not warrant and cannot ensure the security of any information transmitted to it by you. Accordingly, any information that you transmit to the Owners is transmitted at your risk. Nevertheless, once the Owners receive transmissions from you, they will take responsible steps to preserve the security and confidentiality of your Personal Information.
(b) You must take your own precautions to ensure that the process which you employ for accessing the Software and/or the Services does not expose you and your Device to the risk of viruses, malicious computer code or other forms of interference which may damage such Device. For the removal of doubt, the Owners do not accept responsibility for any interference or damage to any Device which may arise in connection with or as a result of use of the Software and/or the Services.
(c) You must take all reasonable steps to protect the security of your Device, including by ensuring you don’t have any viruses or other mechanisms capable of recording your passwords or access codes to the Software.
(d) If you suspect that there has been a breach of this EULA, including any unauthorised access to your account, or any other security breach or issue relating to the Software, Services or your account, you must notify the Owners immediately (see clause 15 for contact details) and change your account password.
(a) You may not assign, novate or otherwise transfer any of your rights or obligations under this EULA without the prior written consent of the Owners, which consent can be granted or withheld in the absolute discretion of the Owners. An assignment in breach of this clause 14.1(a) shall be void and of no force and effect.
(b) The Owners can assign, novate or otherwise transfer any of its rights or obligations under this EULA at its sole discretion, on written notice to you. The Owners may subcontract the performance of its obligations under this EULA to any person and without notice to you, but will remain liable to you for the performance of its obligations notwithstanding any such sub-contracting.
(a) A waiver of a right, remedy or power by the Owners must be in writing and signed by the Owners.
(b) The Owners do not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
(c) A waiver given by the Owners in accordance with clause 14.2(a):
If a provision in this EULA is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this EULA for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this EULA.
This EULA is governed by and is to be construed under the laws in force in New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this EULA. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to this EULA and the transactions contemplated by it.
You acknowledge and agree that you have not relied on any statement by the Owners which has not been expressly included in this EULA.
(a) This EULA constitutes the entire agreement between you and the Owners regarding access and use of the Software and Services, and subject to sub-clause (b), supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
(b) Your use of other products, Devices, software or services may be subject to further terms.
(a) Unless expressly required by the terms of this EULA, the Owners are not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this EULA.
(b) The Owners may (without any requirement to act reasonably) impose conditions on the grant by them of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this EULA. You must comply with any such conditions when relying on the consent, approval or waiver.
(a) Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination of this EULA, clauses 3.3, 3.4, 4.2, 6.3, 7.3, 10, 11, 12, 13, 14.4 and this clause 14.9 survive the termination of this EULA.
(b) Each indemnity offered by you in this EULA is a continuing obligation, independent from the other obligations of the parties and survives the termination of this EULA. It is not necessary for the Owners to incur expense or make payment before enforcing a right of indemnity against you under this EULA.
In the event that you need to contact the Owners regarding this EULA, the Software and/or the Services, please use the contact details on the Software website.