1. Acceptance and Term
1.1 Alooba Pty Ltd ABN 96 631 848 872 (we, us or our) provides 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 as described at https://www.alooba.com/ and as may also be available through other addresses and channels (together, the Platform). These Terms are entered into between you and us, together the Parties and each a Party.
1.2 In these Terms, “you” means the individual accessing or using the Platform as a user.
1.3 You accept these Terms by accessing and using the Platform
1.4 These Terms will commence on the date on which you accept these Terms (Commencement Date) and will continue until the date these Terms are terminated in accordance with the clause 10 (Term).
2.1 In consideration of your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable personal and revocable licence to access and use the Platform for personal purposes for the Term (Licence).
3. Accessing the Platform
3.1 You may be able to access the Platform and complete an assessment without an Account.
3.2 To see the results from any assessment you complete (Your Results), you must create an Account and you will be required to choose a username and password or sign-up using an existing third party account which the Platform links with, such as a LinkedIn or Google account.
3.3 You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.
3.4 Your Account is personal and you must not transfer it to others, except with our written permission.
3.5 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account and for ensuring that any activities on your Account comply with these Terms.
4. Restrictions on Use
4.1 You must not access or use the Platform except as permitted by the Licence and you must not (and must not permit any other person to) use the Platform in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights, including to:
(a) use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing, unwanted, misleading or deceptive;
(b) use the Platform in any way that damages, interferes with or interrupts the supply of the Platform;
(c ) use the Platform in any way that breaches any applicable Laws or infringes any person's rights, including Intellectual Property Rights and privacy rights, or interferes with any person’s privacy;
(d) introduce malicious programs into our software or systems, including viruses and malware through any channel;
(e) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details;
(f) carry out security breaches or disruptions of a network, including 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);
(g) 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 Platform;
(h) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Platform in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(i) circumvent user authentication or security of any of our Platform, networks, accounts or hosts or those of our other users.
5. Third Party Inputs
5.1 You agree that the Platform may include Third Party Inputs that interface, or interoperate, with the Platform, including third party software or services and that the provision of the Platform may be contingent on, limited by or impacted by (for example, our data hosting provider is a third party provider).
5.2 You must comply with our instructions and directions, whether written or verbal, in relation to use of any Third-Party Inputs. Where we provide you with any terms and conditions for use of these Third Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.
5.3 You acknowledge that the Platform may also 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 optional functionalities or features, 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 functionalities and features made available to you.
5.4 This clause 5 will survive the termination or expiry of these Terms.
6.1 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 Platform (Support). If you would like to request such Support, you must email us with details of your Support request.
6.2 You agree, where we provide any Support to you, to assist us in investigating and ascertaining the cause of any issues and provide us with access to all necessary information relevant to the issue (including what you have done in relation to the issue).
7.1 The Platform is provided to you on an “as is”, and “as available” basis and subject to your Statutory Rights, 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. 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 Platform will be secure, timely, uninterrupted or error-free;
(b) the Platform will operate in combination with any other hardware, software, system, or data;
(c ) the Platform will meet your requirements or expectations;
(d) any stored User Data will be accurate or reliable or that any User Data provided by you or stored by us will not be lost or corrupted;
(e) errors or defects will be corrected; or
(f) the Platform will be free of viruses or other harmful components.
7.2 You warrant and agree that:
(b) you have all hardware, software and services which are necessary to access and use the Platform;
(c ) you will use the Platform in accordance with these Terms;
(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete (including your Account details) and you acknowledge and agree that we will rely on such information and documentation in order to provide the Platform;
(e) you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Platform to be provided in accordance with these Terms, at your cost, and for providing us with the necessary consents, licences, authorities and permissions; and
(f) you will maintain the confidentiality and security of any of your Account and passwords.
8. Intellectual Property Rights
8.1 This clause 8 will survive termination or expiry of these Terms.
8.2 The Parties agree that nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights.
Our Intellectual Property Rights
8.3 You agree that we (or the relevant third party) own all Intellectual Property Rights in:
(a) Our Materials;
(b) New Materials or Improvements (including Your Results);
(c ) Analytics; and
(d) any Feedback,
and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
8.4 We grant you a non-exclusive, non-transferrable, non-sublicensable licence during the Term to export, copy and use Your Results solely for your personal purposes.
8.5 You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of Feedback.
8.6 In the use of any Intellectual Property Rights in connection with these Terms, you agree that you must not commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred including where you become aware of a claim or potential claim of infringement of third party Intellectual Property Rights, you must notify us immediately.
8.7 We agree that you own all Intellectual Property Rights in Your Materials.
8.8 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, and as otherwise contemplated by these Terms.
8.9 If you have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to consent to our use or infringement of those Moral Rights.
8.10 As between you and us:
(a) all User Data is and remains your property; and
(b) you retain any and all rights, title and interest in and to the User Data, including all copies, modifications, extensions and derivative works.
8.11 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the User Data during the Term (and for a reasonable period after the Term), to:
(a) supply the Platform to you (including to enable you to access and use the Platform);
(b) diagnose problems with the Platform;
(c ) enhance and otherwise modify the Platform;
(d) perform Analytics;
(e) develop other services or products, provided we de-identify the User Data; and
(f) as otherwise reasonably required to perform our obligations under these Terms.
9. Our liability
9.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will not be liable for Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party, including a failure to mitigate that Liability; and
(c ) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Platform to you or, in our sole discretion, to us paying you $100.
9.2 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) failure or delay in providing the Platform or the User Data, or the User Data being unavailable to you, for any reason;
(b) breach of these Terms or any Laws by you;
(c ) loss of, or damage to, any property or any injury to or loss to any person;
(d) the Computing Environment;
(e) your acts or omissions;
(f) any use or application of the Platform by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(g) any User Data, including where our use of it, as contemplated by these Terms, infringes on the rights of a third party;
(h) any works, services, data, hardware, materials or items which do not form part of the Platform (as expressed in these Terms), or which have not been provided by us;
(i) any Third Party Inputs; and/or
(j) any event outside of our reasonable control, including a force majeure event.
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 8 (Intellectual Property) and/or from any claim relating to our use of the User Data in accordance with these Terms.
9.4 Certain legislation, including the Australian Consumer Law, and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to 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 Australian Consumer Law. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law 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 Platform;
(b) you use the Platform and any associated programs and files at your own risk;
(c ) the technical processing and transmission of the Platform, including the User 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;
(d) we may use third-party service providers to assist in transmitting or hosting the Platform, including for the collection of and provision of the User Data. 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 without liability or entitling you to any compensation;
(e) the Platform 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;
(f) any Third Party Inputs and/or reliance on these Third Party Inputs, for example reliance on any data from third parties;
(g) we do not guarantee that any file or program available for download and/or execution from or via the Platform is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used and we are not responsible for any corruption or loss of any User Data if such corruption or loss is due to an act or omission by you; and
(h) we are not responsible for the integrity or existence of any User Data on the Computing Environment, or any network or device controlled by you.
9.6 This clause 9 will survive the termination or expiry of these Terms.
10.1 You may terminate these Terms at any time by emailing us to request to terminate your Account.
10.2 If we have reason to believe you are misusing the Platform or are otherwise in breach of these Terms, we may suspend and/or terminate your Account at any time, by providing you with notice, in which case we will immediately cease providing the Platform to you.
10.3 On termination of these Terms you must cease to access the Platform and delete all copies of Your Results in your possession or control.
10.4 Clause 10.3 will survive the termination or expiry of these Terms.
11.1 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties.
11.2 Nothing in this clause 11 will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
11.3 This clause 11 will survive the termination or expiry of these Terms.
13.1 Changes to the Platform: You agree that we may make changes to the Platform. If you have any concerns about any such changes, you may choose to terminate your Account and these Terms in accordance with clause 10.1.
13.2 Changes to the Terms: We may amend these Terms at any time, by providing written notice to you. By continuing to use the Platform, you agree to the amended terms. If you do not agree to the amendment, you must terminate these Terms in accordance with clause 10.1.
13.3 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent (such consent is not to be unreasonably withheld).
13.4 Entire agreement: These Terms contain the entire understanding between the Parties, and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of their subject matter.
13.5 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
13.6 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
13.7 Governing law: These Terms are governed by the laws of New South Wales, Australia. Subject to clause 11.1, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
13.8 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and 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 by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
13.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
13.10 Severance: If a provision of these Terms is 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 in these Terms.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the body of these Terms and:
- Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
- Account means an account set up by you to use the Platform;
- Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and IT systems;
- Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
- Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
- Intellectual Property Breach means any breach by you of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties);
- Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
- Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of our personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term;
- Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Platform;
- Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
- New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of either Party (or any of our personnel) in connection with these Terms and the Platform (including anything generated by the Platform as a result of your use of the Platform, Your Results and any machine learning algorithms output from the Platform, but excluding User Data and Your Materials), whether before, during or after the Commencement Date;
- Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property and the Platform) that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws;
- Terms means these Individual User Terms and any terms agreed under it and any documents attached to, or referred to in them;
- Third Party Inputs means third parties or any goods and services provided by third parties, customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;
- User Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you into the Platform and any personal data collected, used, disclosed, stored or otherwise handled in connection with these Terms. User Data expressly excludes Our Materials, New Materials (including Your Results) and Improvements; and
- Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you before the Commencement Date and/or developed by or on behalf of you independently of these Terms.
For any questions and notices, please contact us here
Alooba Pty Ltd ABN 96 631 848 872
Last update: 30th September 2021