Terms and Conditions
Effect of Terms
These terms and conditions (Terms) govern the terms on which we provide to you the Hardware and you may access and use our software application known as ‘Entertain’ (Software) and all associated documentation (Documentation) made available in connection
with the Software and the Hardware and constitutes a binding contract between you (Client or you) and Alphalitica Pty Ltd ACN 95 637 610 701 (Entertain Digital, us or we).
If you are agreeing to these Terms on behalf of a business entity, you represent to Entertain Digital that you have legal authority to bind that entity.
By accessing, or otherwise using the Hardware or the Software, you confirm you have read, understood and agree to these Terms.
Grant of Licence
In consideration for agreeing to abide by these Terms and any Standard Terms (if applicable), we grant you a non-exclusive and non-transferrable licence to access and use the Software solely on these Terms (Licence).
We grant a non-exclusive, non-transferrable licence to use any Documentation in support of the use permitted under this clause 0.
Except as expressly set out in these Terms or as permitted by law, you undertake:
not attempt to make any copy of the Software;
not to sell, transfer, rent, lease, sub-license, loan, translate, merge, adapt, vary, alter, modify or reverse engineer, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other materials or
not to provide, or otherwise make available, the Software in any form, in whole or in part to any person without our prior written consent;
not to introduce or upload anything to the Software that includes viruses or other malicious code;
to use the Software only for the purpose for which it has been developed; and
not to modify or create copies of the Documentation.
You are responsible for the content, accuracy and completeness of any Client Data you provide to us under these Terms.
We may copy, reproduce, use, store, communicate or adapt any Client Data for the purposes of providing the services.
You are responsible for obtaining any consents or permissions required with respect to Client Data and complying with any applicable laws, including the Privacy Act 1988 and the Australian Privacy Principles in respect of that information.
Intellectual Property Rights
You agree and acknowledge that:
the Intellectual Property Rights in the Software, the Hardware and the Documentation shall remain the property of Entertain Digital or its relevant licensor and Entertain Digital reserves the right to grant a licence to use the Hardware, Software and the
Documentation to any other party or parties;
you have no rights in or to the Software, Hardware and Documentations other than the right to use it in accordance with these Terms;
you must do all things that Entertain Digital reasonably requires to perfect Entertain Digitals right, title and interest in and to the Intellectual Property Rights in the Software, Hardware and the Documentation;
you shall use reasonable endeavours to prevent any infringement of Entertain Digitals Intellectual Property Rights in the Software, Hardware and Documentation and shall promptly report to Entertain Digital any such infringement that comes to your attention; and
you have no right to have access to the Software in source code form other than as expressly provided in these Terms.
All Intellectual Property Rights in the Client Data remain the property of the Client or relevant third parties and nothing in these Terms shall be construed as giving Entertain Digital any rights to such Intellectual Property Rights.
We may use your name and trade mark on our website and advertising or promotional material, and may disclose that you are our customer.
You agree to pay to us any fees agreed between us in relation to the provision of the Hardware and the Software, such fees to be paid in full prior to access of the Software.
Termination or suspension
We may at any time terminate or suspend the Licence and your access to the Software immediately by giving written notice to you if:
you commit a material breach of these Terms and (if such breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing to do so;
you repeatedly breach these Terms in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to these Terms; or
you suffer an Insolvency Event.
Obligations on termination of Licence
On termination or expiry of the Licence, you must as soon as reasonably practicable:
permanently delete any Documentation from your IT network or its storage devices; and
cease all further use of the Software, whether in tangible or intangible form,/
provided that if you are required by any law, regulation, or government or regulatory body to retain any documents or materials containing the Software, you must notify us in writing of such retention, giving details of the documents and/or materials that you must
Data retention on termination of Licence
In the event that we terminate the Licence for any reason, we will retain your data for no more than 60 days after termination (Retention Period).
If you send us a written request for a copy of your data during the Retention Period, we will extract it from our systems and provide it to you, subject to payment of any reasonable costs incurred in doing so.
At the end of the Retention Period, if we have not granted you a new licence to use the Software during the Retention Period, we may delete any data that you uploaded to our systems while using the Software.
We warrant that:
we have the right to enter into this document and to grant to you a licence to use the Software as contemplated by this document;
the Software and the Hardware will be free from material defects for a period of 12 months from delivery;
the Software and Hardware will, when properly used within an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation; and
the Software is free from viruses and other malicious code.
Except as set out in this document, the Software, Hardware and Documentation are provided “as is,” and we do not guarantee the functionality of the Software or Hardware or a particular result from the use or integration of the Software or Hardware.
Entertain Digital makes no representations as to the availability of the Software.
Neither Entertain Digital, its members, managers, officers, employees, agents, nor its suppliers shall be liable to you for any loss of use, lost or inaccurate data or data corruption, non-compliance with any statutory or legal obligation or deadline, lost profits, failure of
security mechanisms, interruption of business, delays or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if
informed of the possibility of such damages in advance.
To the extent permitted by law, Entertain Digital expressly disclaims any responsibility for the loss or damage, including personal injury or death, resulting from the use of the Software or Hardware or any unauthorised access of Client Data.
To the extent permitted by law, Entertain Digital 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. Any
content and material downloaded or otherwise obtained through the use of the Software is done at your sole risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such product,
offering, content or material.
Neither party will be liable to the other or any other person for any loss of use, lost or inaccurate data or data corruption, non-compliance with any statutory or legal obligation or deadline, lost profits, failure of security mechanisms, interruption of business, delays
or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.
Warranties and indemnities
You warrant and represent that you will not use the Software or Hardware in a manner which infringes the rights of any other person or breaches any applicable law or regulation.
We may amend or vary these Terms at any time by notice to you. You may elect to terminate this licence rather than agreeing to the updated Terms, but continued use of the Software will be subject to agreeing to the updated Terms, and if you continue to use the
Software after receiving notice of the updated Terms you agree that you will be deemed to have accepted the updated Terms.
We may transfer our rights and obligations under these Terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
Each of the clauses in these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
These Terms constitutes the entire agreement between you and us on the subject matter, and merges and supersedes all other or prior understandings, purchase orders, agreements and arrangements.
A right under these Terms 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.
These Terms shall be governed by the laws of the state of Queensland, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.
If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing. We will confirm receipt of this by contacting you in writing, normally by email.
If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide or confirm to us.
Defined terms & interpretation
In these Terms:
Client Data means all information provided by the Client to be stored, transmitted, processed and/or inputted into the Software.
Insolvency Event means any of the following events concerning a party:
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;
if the party is unable to pay its debts when they become due and payable;
if the party ceases to carry on business; or?
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, trademarks, service marks, designs, confidential information, trade secrets,
know how, data and databases, systems and domain names.
Standard Terms means the terms and conditions for the use of related software and services entered into between Entertain Digital and the Client.
In this document:
a reference to a clause or party is a reference to a clause of, and party to, these Terms;
a reference to a party to these Terms or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
a reference to a document, agreement or policy (including a reference to these terms) is to that document, agreement or policy as amended, supplemented, varied or replaced; a reference to legislation or to a provision of legislation (including subordinate
legislation) is to
that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
if any day on or by which a person must do something under these Terms is not a business day, then the person must do it on or by the next business day;
a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity; and the meaning of any general language is not restricted by any
accompanying example, and the words ‘includes’, ‘including’, ‘such as’, or ‘for example’ (or similar phrases) do not limit what else might be included.