Version Date: 1 April 2024
1. Background
1.1 Software
(a) This End-User Licence Agreement (EULA) is a legal agreement between you (Customer, you or your) and Kallipr Pty Ltd ACN 619 635 924 (Kallipr, us or we) for:
(i) Kallipr Kloud 2.0 (including Kallipr Kloud Fleet); and
(ii) Kallipr Kloud 1.0 (previously known as Captis Cloud); and
(iIi) any other software that may be provided by Kallipr under a purchase order in connection with the supply of hardware,
(together, Software).
(b) This EULA also applies to all Upgrades we make to the Software from time to time.
1.2 General
(a) We licence use of the Software to you on the basis of this EULA and the relevant purchase order. We remain the owners or licensors (as applicable) of the Software at all times.
(b) By accessing or otherwise using the Software, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not use the Software.
(c) To the extent that any Third Party Software is provided, you agree to comply with the terms of any Third Party EULA. We will provide you with a copy of the Third Party EULA before you agree to receive the Third Party Software.
2. Term
Kallipr agrees to provide you with access to and use of the Software for the Term.
3. Grant of licence
3.1 LicenceIn consideration of you paying the Price and complying with the terms of this EULA, Kallipr hereby grants you a royalty-free (subject to payment of the Price), revocable, non-exclusive, non-sublicensable, non-transferable (except as otherwise agreed by Kallipr) licence to use the Software where acquired from an Approved Source.
3.2 Use of the SoftwareIn using the Software, you must:
(a) only use the Software for the purpose for which it has been developed;
(b) promptly report any errors, defects or malfunctions with the Software to us; and
(c) keep all account information up to date, and use reasonable means to protect your account information, passwords and other login credentials, and promptly notify Kallipr of any known or suspected unauthorised use of or access to your account; and
(d) comply with:
(i) this EULA;
(ii) any Documentation we provide from time to time;
(iii) all applicable laws, regulations, rules and codes; and
(iv) any reasonable directions issued by us from time to time.
3.3 Authorised Third PartiesYou may permit Authorised Third Parties to exercise the rights granted to you under this EULA on your behalf, provided that you are responsible for:
(a) ensuring that such Authorised Third Parties complies with this EULA; and
(b) any breach of this EULA by such Authorized Third Parties.
3.4 Trial useIf Kallipr grants you the right to use any Software on a trial basis (Evaluation Software), you may use the Evaluation Software:
(a) on the same terms as applicable for Software under this EULA; and
(b) for a period of 60 days from provision of the Evaluation Software by Kallipr.
3.5 Upgrades, updates etc(a) We will provide you with reasonable notice of any Upgrades to the Software where such Update would materially affect your reasonable use of the Software.
(b) You acknowledge and agree that older versions of Software may become inoperable and Kallipr will not be under any obligation to support older versions of the Software.
3.6 InteroperabilityKallipr may provide you with reasonable information necessary to achieve interoperability between the Software and another independently created program. Any such information provided by Kallipr will be considered as Kallipr’s Confidential Information for the purposes of this EULA.
4. Additional conditions of use
4.1 Prohibitions on use of Software
Except as expressly set out in this EULA or as permitted by law, you must not:
(a) transfer, sell, sublicense, monetise or make the Software available to any third party;
(b) copy, rent, lease, distribute, pledge, assign or otherwise transfer or encumber rights to or in the Software;
(c) use the Software in connection with any equipment or any device not authorised by Kallipr;
(d) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks from the Software;
(e) reverse engineer, decompile, decrypt, disassemble, modify, or make derivative works of the Software;
(f) use any Kallipr Content other than as part of your permitted use of the Software;
(g) interfere with other customers’ access to, or use of, the Software, or with its security;
(h) facilitate the attack or disruption of the Software, including a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware, and cancelbots);
(i) undertake or cause an unusual spike or increase in your use of the Software that negatively impacts the Software’s operation; or
(j) submit any information or data to the Software that is not contemplated in the applicable Documentation.
4.2 Kallipr’s rights
Kallipr may:
(a) Upgrade any Software, provided that Kallipr does not materially affect the functionality of that Software; and
(b) perform scheduled maintenance of the Software and the related infrastructure used to provide the Software. Where reasonably practicable, we will provide you with reasonable advance notice of such maintenance. You acknowledge that, from time to time, Kallipr may need to perform maintenance without providing You with advance notice, during which time Kallipr may temporarily suspend Your access to, and use of, the Software. Kallipr will provide you with notice in these circumstances as soon as reasonably practicable; and
(c) stop providing any Software, including component functionality by providing reasonable prior written notice on its Website (Discontinued Software). If you or your Kallipr Partner have prepaid any fees for your use of any Discontinued Software, Kallipr will use commercially reasonable efforts to transition you to a substantially similar Software. If Kallipr does not provide any substantially similar Software, Kallipr will provide you with a credit for the balance of your fees related to the Discontinued Software to be applied towards the future purchase of any Kallipr products.
4.3 Your acknowledgements
You acknowledge and agree:
(a) if you use the Software together with any third party products or software, then such use is solely at your own risk;
(b) you are responsible for complying with any Third Party EULAs or other third party provider terms, including its privacy policy;
(c) Kallipr does not provide any support or guarantee ongoing integration support for any hardware or software that is not the Software;
(d) open-source software not owned by Kallipr but used in connection with the Software is subject to separate license terms. Kallipr will ensure that open-source software licences will not materially affect your ability to exercise your rights under this EULA; and
(e) the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirement.
5. Price
(a) The Price for your use of Software will be set out in the relevant purchase order. You must pay the Price within the timeframes contemplated in the purchase order.
(b) To the extent that your usage of the Software exceeds any usage limitations, you must pay Kallipr for such additional usage costs.
(c) Specific to Kallipr Kloud 1.0 only, different device fees and data overage charges may occur based on how devices are configured, number of inputs and different sampling rates. This will generate different daily device usage in terms of “Measurements, Events, Alarms” (MEAs) and determine Device Class charges as confirmed in your relevant purchase order.
6. Confidential information and use of data
6.1 Confidentiality
(a) Each party agrees to hold in confidence, and use no less than reasonable care to avoid disclosure of, any Confidential Information of the other party to any third party, except for its employees, affiliates, and contractors who have a need to know such Confidential Information (Permitted Recipients).
(b) Each party:
(i) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA; and
(ii) is responsible for any breach of this section by its Permitted Recipients.
(c) The obligations in clause 6.1(a) do not apply:
(i) to the extent necessary to enable disclosure required by law;
(ii) to any disclosure agreed in writing between the parties;
(iii) where the Confidential Information has entered the public domain other than as a result of a breach of this document or other obligation of confidence; or
(iv) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
(d) Upon the reasonable request of the other party and otherwise on termination or expiry of this EULA, a party must either return, delete or destroy (at the option of the other party) all Confidential Information of the other party upon termination or expiry of your rights to use the Software.
6.2 Customer Data
(a) As between the parties, title to, and all Intellectual Property Rights associated with, the Customer Data vests in you upon creation, and Kallipr and the Kallipr Partners absolutely and unconditionally assign, and must procure that their Personnel assign, to you all Intellectual Property Rights associated with the Customer Data that vests in Kallipr or the Kallipr Partners immediately upon creation, free of all encumbrances and third party rights.
(b) You:
(i) grant Kallipr a royalty-free, non-exclusive, non-transferable licence for the Term to use the Customer Data only to the extent required to perform its obligations under a relevant purchase order. This licence may be sublicensed by Kallipr for the purpose set out in the foregoing to a third party supplier, but otherwise does not include the right to grant a further sub-licence to any other party, except with your prior written consent (not to be unreasonably withheld); and
(ii) agree and acknowledge that Kallipr:
(A) is not responsible for the back-up of any Customer Data in connection with the Software unless agreed to by Kallipr as a special condition; and
(B) will not liable to you for any loss, destruction or other damage caused by you failing to back-up the Customer Data.
You acknowledge that:
(a) all Intellectual Property Rights in and to the original created components of the Software (including but not limited to any images, photographs, animations, video, text, design, know-how and proprietary information incorporated into the Software), and any copies of the Software are owned by Kallipr;
(b) you have no Intellectual Property Rights in or to the Software other than the right granted to use the Software in accordance with the terms of this EULA; and
(c) all title and Intellectual Property Rights in and to additional third party libraries and content accessed through use of the Software is the property of the respective content owner and this EULA grants you no rights to use such content.
You agree to defend, indemnify and keep indemnified Kallipr, the Kallipr Partners and our Personnel from and against any claims, losses or damages arising from or in connection with:
(a) your uploading of, access to, or use of misuse of the Software;
(b) your breach of clause 7 (Intellectual Property Rights); or
(c) your breach of any third party terms, including any Third Party EULA,
except to the extent caused or contributed to by Kallipr, a Kallipr Partner or our Personnel.
(a) This clause sets out your exclusive remedy against Kallipr with respect to any third party claim against you asserting that your use of the Software infringes a third party’s patent, copyright or registered trademark (IP Claim).
(b) Kallipr will defend any IP Claim on your behalf and Kallipr will indemnify you against the final judgment entered by a court of competent jurisdiction, provided that you:
(i) promptly notify Kallipr in writing of the IP Claim;
(ii) fully cooperate with Kallipr in the defence of the IP Claim; and
(iii) grant Kallipr the right to exclusively control the defence and settlement of the IP Claim, and any subsequent appeal. Kallipr will have no obligation to reimburse you for legal fees or costs incurred prior to Kallipr’s receipt of notification of the IP Claim. You, at your own expense, may retain your own legal representation.
(c) If an IP Claim is made and prevents your exercise of your rights under this EULA, Kallipr will either procure for you the right to continue using the Software or replace or modify the Software with non-infringing software that has at least the equivalent functionality to the relevant Software. If Kallipr determines that these alternatives are not reasonably available, Kallipr may terminate your receipt of the Software upon written notice to you and will refund you a prorated portion of the Price paid for the Software (or part thereof) for the remainder of the unexpired Term.
(d) Kallipr has no obligation with respect to any IP Claim based on:
(i) compliance with any designs, specifications, or requirements you provide or a third party provides on your behalf;
(ii) your modification of any Software or modification by a third party on your behalf or for your benefit;
(iii) your operation or use of Software, including combining them with non-Kallipr products, software or other business processes;
(iv) your failure to modify or replace Software as required by Kallipr; or
(v) any Software provided on a no charge, beta or evaluation basis, including without limitation under clause 3.4.
(a) Kallipr warrants that:
(i) the Software will:
(A) be provided with due care and skill in a professional and efficient manner;
(B) be provided to meet or exceed the service levels set out in the relevant purchase order;
(C) be free from material defects;
(D) comply with any specifications set out in the relevant purchase order; and
(E) comply with all applicable laws and regulatory requirements;
(ii) any upgrades, enhancements or other modifications to the Software during the Term will not adversely affect any material functionality, compatibility or performance of such Software; and
(iii) your use of the Software in accordance with this EULA will not violate or infringe upon any third party Intellectual Property Rights.
(b) The warranties in clause 10(a) do not apply if:
(i) a defect or fault in the Software results from you having altered or modified the Software or any related hardware or equipment, except as permitted by the Documentation;
(ii) a defect or fault in the Software results from you having used the Software in breach of the terms of this EULA;
(iii) any hardware or equipment related to the Software has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA which results in a defect or fault in the Software, except as permitted by any documentation relating to that hardware;
(iv) the Software is provided on a no charge, beta or evaluation basis, including without limitation under clause 3.4; or
(v) the Software has not been provided by an Approved Source.
(a) This EULA will automatically terminate if the relevant purchase order is terminated or otherwise expires.
(b) A party may terminate this EULA immediately on written notice to the other party if the other party:
(i) materially breaches this EULA and does not remedy that breach within 14 days after receipt of written notice of the breach from the party; or
(ii) suffers an Insolvency Event.
(c) Upon termination of the EULA:
(i) you must stop using the Software and the licence granted by Kallipr under clause 3.1 will immediately cease;
(ii) you must immediately pay Kallipr or the Kallipr Partner the balance of the outstanding Price up to the date of termination; and
(iii) each party must comply with their obligations under clause 6.1(d); and
(iv) without limiting your obligations under clause 6.1(d), you must destroy any copies of Software and our Confidential Information within your control.
(d) Clauses 4.1, 6 to 9, 11, 12, 14 and 15 will survive the expiration or earlier termination of this EULA.
12.1 Exclusions
To the extent permitted by law:
(a) and without limiting the rights you may have under the Australian Consumer Law, Kallipr expressly disclaims all warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement
(b) the Software is provided “as is”, and we do not guarantee the functionality of the Software or a particular result from the use of the Software. You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements;
(c) Kallipr does not warrant, guarantee or represent that the use of the Software will be uninterrupted or error free;
(d) to the extent permitted by law, Kallipr expressly disclaims any responsibility for loss or damage, including personal injury or death, resulting from the use of the Software and all express or implied warranties with respect to the Software; and
(e) in no event does Kallipr authorise you to use the Software in applications or systems where the Software failure to perform can reasonably be expected to result in a physical injury, or in loss or endangerment of life. Any such use by you is entirely at your own risk; and
(f) Kallipr will have no liability where your ability to use the Software, or the Software’s operation or availability, is affected due to third party utilities, systems, or services used for accessing the Software (including due to failure or delays in relation to public telephone services, computer networks or the internet, or due to third-party platform services that support the delivery of the Software) being unavailable from time to time.
12.2 Maximum liability(a) To the extent permitted by law and subject to clause 12.2(b), the total liability of each party arising under or in connection with this EULA is limited in the aggregate to the total Price actually paid by you for the Software in the 12-month period preceding the claim.
(b) Clause 12.2(a) will not limit or exclude the liability of either party for any liability arising from:
(i) fraud or fraudulent misrepresentation;
(ii) the deliberate default or wilful misconduct of that party or their Personnel;
(iii) in the case of you:
(A) the obligation to pay the Price;
(B) your breach of clause 7 (Intellectual Property Rights); or
(C) the indemnity in clause 8 (Your Indemnity); and
(iv) in the case of Kallipr, the indemnity under clause 9(b).
12.3 Consequential lossTo the maximum extent permitted by law, neither party shall be liable to the other party for any Consequential Loss arising out of or in connection with this EULA.
12.4 MitigationEach party must mitigate any loss they suffer as a result of the breach by the other party to this EULA or any warranty or indemnity provided under this EULA.
12.5 Australian Consumer LawTo the extent that any rights cannot be excluded (including under the Australian Consumer Law), Kallipr’s liability will be limited to, at its election:
(a) repair or replacement of the Software; or
(b) a refund of the fees paid by you for the non-conforming Software.
13.1 Notice of Force Majeure
A party will not be liable for any delay or failure to perform any of its obligations under a purchase order if as soon as possible after the beginning of the Force Majeure Event affecting the ability of the party to perform any of its obligations under this document, it gives a notice to the other party that:
(a) specifies the obligations the party cannot perform and fully describes the Force Majeure Event;
(b) estimates the time during which the Force Majeure Event will continue; and
(c) specifies the measures proposed to be adopted to mitigate, remedy or abate the Force Majeure Event.
13.2 Obligation to remedy and mitigateThe party that is prevented from carrying out its obligations under a purchase order as a result of Force Majeure Event must remedy the Force Majeure Event to the extent reasonably practicable and resume performance.
14.1 Assignment
(a) A party must not assign or transfer, in whole or in part, any of its rights or obligations under this EULA without the other party’s prior written consent (not to be unreasonably withheld or delayed).
(b) Kallipr may subcontract, in whole or in part, any of its rights and obligations under this EULA without your prior written consent. Kallipr will remain responsible for all acts and omissions of its subcontractors.
14.2 InconsistencyIf you purchase the Software from or through a Kallipr Partner, the terms of this EULA apply to your use of that Software and prevail over any inconsistent provisions in your agreement or purchase order with the Kallipr Partner.
14.3 Compliance with lawsEach party will comply with all laws and regulations applicable to their obligations under this EULA. Kallipr may restrict the availability of the Software in any particular location or modify or discontinue features to comply with applicable laws.
14.4 Governing lawThis EULA, and any disputes arising from it, will be governed exclusively by the law of the State of Queensland, Australia and the Courts having jurisdiction in that State.
14.5 NoticeAny notice delivered by a party under this EULA will be delivered via email, to the address set out in any relevant purchase order.
14.6 No waiverA right under this EULA may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
14.7 SeverabilityIf any portion of this EULA is not enforceable, it will not affect any other terms and the unenforceable term will be severed to the extent it is possible to do so, while the remainder of the term is given effect.
14.8 Entire agreement(a) This EULA constitutes the entire statement of the agreement between the parties with respect to the subject matter, and merges and supersedes all other or prior communications, understandings, purchase orders, arrangements and agreements (whether written or oral).
(b) The parties acknowledge that they may enter into other agreements (including incidental to this agreement) for the supply of goods or services.
14.9 TranslationsKallipr may provide local language translations of this EULA in some locations. You agree that those translations are provided for informational purposes and if there is any inconsistency, the English version of this EULA will prevail.
15. Definitions
In this EULA:
Affiliate means any corporation or company that directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g. an agreement that allows control).
Approved Source means Kallipr or a Kallipr Partner.
Australian Consumer Law means Schedule 2, Competition and Consumer Act 2010 (Cth).
Authorised Third Parties means your Users, your Affiliates, your third-party service providers, and each of their respective Users permitted to access and use the Software on your behalf.
Confidential Information means any information relating to the business and affairs of a party, its clients, employees, sub-suppliers or other persons doing business with a party, this EULA including without limitation with respect to the Software, the Intellectual Property Rights of a party or which is by its nature confidential or designated as confidential by a party or which the other party knows or ought to know is confidential, and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.
Consequential Loss means any consequential, indirect, incidental or special loss including without limitation loss or use of data (including Customer Data), loss of profit, loss of revenue, business interruption, loss of business, loss of opportunity, loss of reputation or loss in connection with breach of third party contracts or arrangements.
Customer Data means:
(a) data owned or supplied by you to which Kallipr or the Kallipr Partner is provided access to in connection with the Software; or
(b) data generated, compiled, arranged or developed by either you or Kallipr in connection with the Software that relates to you or your use of the Software.
Device Class means the average frequency number of MEAs (measurements, events, alarms) a device sends to Kallipr Kloud 1.0 as determined by the following:
(c) Class A devices < 24 MEA’s per device per day
(d) Class B devices ≥ 24 MEA’s and <144 MEA’s per day
(e) Class C devices ≥144 and <1440 per day
(f) Class D devices 1440 and <8640 per day
Number of MEAs per day is determined by the average number of MEAs per day over a calendar month. Get API calls are not counted towards daily MEA allowance.
Documentation means the technical specifications and usage materials provided by Kallipr to you that specifies the functionalities and capabilities of the applicable Software.
Force Majeure Event means a matter beyond the reasonable control of a party and includes without limitation an act of God, national emergency, terrorist act, sabotage, flood, storm, earthquake, fire, explosion, epidemic, pandemic, civil disturbance, insurrection, riot, war, industrial action, lockout, rebellion, quarantine, embargo and other similar governmental action or a general and continued energy shortage, power or utilities interruption, but cannot apply with respect to the payment of money due under this document.
Insolvency Event means any of the following events concerning a party:
(a) if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;
(b) if the party is unable to pay its debts when they become due and payable;
(c) if the party ceases to carry on business; or
(d) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trade marks, service marks, get-up and trade dress, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.
Kallipr Content means any content or data:
(a) provided by Kallipr to you as part of your use of the Software; and
(b) that the Software generates or derives in connection with your use of the Software.
For the avoidance of doubt, Kallipr Content includes geographic and domain information, rules, signatures, threat intelligence and data feeds and Kallipr’s compilation of suspicious URLs.
Kallipr Partner means a Kallipr reseller, distributor or systems integrator who is authorised by Kallipr to sell the Software.
Personnel means a party’s directors, officers, employees, agents and contractors, as the context permits.
Price means the price for the Software set out in the relevant purchase order.
Term means:
(a) the term set out in the relevant purchase order; or
(b) otherwise, the term commencing on the date that Kallipr provides the Software to you and ending on the termination of this EULA under clause 11.
Third Party EULA means the end user terms issued by a relevant third party supplier to you in advance of using any Third Party Software or otherwise contained (including by reference) in the relevant purchase order.
Third Party Software means any software program or application owned by a third party where Kallipr facilitates the supply to you pursuant to the relevant purchase order, but which is to be licensed to you directly by the relevant third party supplier.
Upgrades means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.
User means any persons your permit to access and use the Software on your behalf.
Website means the Kallipr website located at https://www.kallipr.com.au/, as amended from time to time.