End User Licence Agreement

This end user licence agreement (referred to throughout this document as the “EULA”) is between you and the University of Tasmania, trading as ‘CB Premium’ (defined in clause 1.1 as we, us). Your use of the Licensed Services is governed by the EULA. It is a legal agreement between you and us. You must be 18 years of age or older (if you are younger than this, you are deemed to have obtained the consent of your parent or guardian) to Register or otherwise make use of the Licensed Services.

In consideration for Registering as a user of the Licensed Services you confirm acceptance of the EULA. The date you Register will be the effective date of the EULA (defined in clause 1.1 as the “Effective Date”). You may not make any use of the Licensed Services unless you have accepted the EULA. At a minimum, your agreement with us will always include the EULA.

1 DEFINITIONS

In the EULA, unless specified otherwise:

Automated Access means use of a process, script, webcrawler, software or other methodology that: (a) permits a user that is not a human user to access the Licensed Services as a user; or (b) monitors any activity in connection with the Licensed Services; and (c) regardless of whether we are aware of the nature of such access.

CB Premium Material means all material provided to you by us prior to and during your operation of the Licensed Services, including all software, guides, any material setting out or supplementing Terms of Service and any other written communications that are commercially sensitive to us.

Confidential Information has the meaning set out in clause 7.1 (Definition of Confidential Information).

Consequential Loss means any consequential or indirect loss suffered or incurred under or in connection with this EULA (whether arising in contract or tort (including negligence), under an indemnity or otherwise) including but not limited to loss of anticipated savings, loss of profits, loss of data (including the costs of reconstruction of a loss of data), costs of internal resources or third parties utilized to address any breach by a party, additional amounts paid for alternative or replacement items, the costs of reworking defective work, and the costs of remedial measures such as engaging extra staff or purchasing additional equipment to address problems.

Effective Date means the date you Register for the Licensed Services.

Harmful Code means viruses, worms, time bombs, Trojan horses and other harmful software, files, scripts, agents or programs.

Intellectual Property Rights means intellectual property rights conferred on a party or recognised at Law in any territory throughout the world including any rights associated with copyright, trademark, business name, patent, innovation concept, semiconductor, formula, trade secret, method, circuit layout, invention and any other results of intellectual activity in any field of industry or endeavour, and includes (a) any right to require that Confidential Information be kept confidential, and (b) any right to use an Intellectual Property Right owned by a third party where the terms of that right of use or licence permit a use of that Intellectual Property Right as contemplated under the EULA and any Terms of Service.

Law means, with reference to any applicable jurisdiction, any statute, regulation, bylaw or a provision of a statute, regulation, or bylaw and includes, without limitation, any statutory rule, or ruling by a statutory body.

Licensed Services means (a) the online, web-based applications, platforms or websites provided by us from time to time via CB Premium (www.cbpremium.org), and other designated platforms or websites that are described to you from time to time; and (b) any offline software made available to you by us, including but not limited to the software branded as ‘CB Premium’ or any other trade mark or business name designated by us. The Licensed Services include, but are not limited to: (a) any services that are arranged by you direct with us; and (b) any associated offline components, but excluding Third Party Applications.

Open Source Software Component means any software which may have been utilised within or in conjunction with the Licensed Services and which is otherwise freely available to the general public under licence terms which are different to this document.

Register means the act of registration as a user of the Licensed Services (including by means of Automated Access - whether in breach of this EULA or otherwise) and includes the act of registration on behalf of that person as a user, or the web-based confirmation of an act of acceptance of an invitation by any person to become a user. Without limiting clause 2.3(d) (Interpretation – General), in this EULA, Registered, Registering and other similar grammatical variances of this word have the corresponding meaning of this concept in the context they are used.

Terms of Service means any other written agreement that you enter into with us in respect of the Licensed Services, and includes any formal proposal documents forming an agreement between you and us concerning your use of the Services. Subject to any principles of interpretation set out in the Terms of Service and the EULA, the Terms of Service will deemed to be incorporated as part of this EULA.

Third Party Applications means online, web-based applications and offline software products that are: (a) provided by third parties; (b) interoperate with the Licensed Services; and (c) may be either separate or con-joined with the Licensed Services, whether or not they are identified to you by us as applications that are provided by third parties.

we, us means the University of Tasmania trading as “CB Premium”.

you means any party who is Registered. Without prejudice to the requirements of our Registration policies, when: (a) there is more than one party involved in that instance of Registration, those parties are jointly and severally liable to us; (b) you are an individual, the expression includes your personal representatives, employees and agents, and if you are an employee, the expression includes your employer; (c) the Registered party is a corporation, the expression includes the employees, agents and successors of the corporation; (d) the Registered party is a partnership, the expression includes the partnership as it is constituted at the date of its Registration and each of its members and also the successors of the partnership whether comprising the same of a different name and each of the members of the partnership or its successors as it may be constituted from time to time; and (e) the Registered party is or becomes a trustee (whether or not that fact is disclosed to the us) the expression includes the party in its personal capacity as well as its capacity as a trustee. Without limiting clause 2.3(d) (Interpretation – General), in this EULA, your, yours and other grammatical variances of these terms in the EULA have the corresponding meaning of this concept in the context they are used.

your Data means all electronic data or information submitted by you making use of the Licensed Services, whether that data or information is submitted by you or data that is intended by you to be processed, stored (temporarily or otherwise) or syndicated using the Licensed Services.

2 INTERPRETATION

2.1 References – People and Parties. In this document a reference to: (a) one gender includes the others; (b) the singular includes the plural and the plural includes the singular; (c) a person includes a body corporate; and (d) a party includes the party’s executors, administrators, successors and permitted assigns.

2.2 References – Statutes and currency. In this document a reference to a Law includes: (a) that Law as amended or re-enacted from time to time; (b) a statute, regulation or provision enacted in replacement of that Law; and (c) another regulation or other statutory instrument made or issued under that Law. A reference to money is to Australian Dollars, unless otherwise stated.

2.3 Interpretation – General. In this document: (a) “including” and similar expressions are not words of limitation; (b) a reference to a clause or schedule is a reference to a clause of or a schedule to the EULA; (c) a reference to an agreement or document (including, without limitation, a reference to the EULA) is to the agreement or document as amended, novated or replaced; (d) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning; (e) headings are for convenience only and do not form part of this document or affect its interpretation; (f) a provision of the EULA must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the EULA; and (g) all references to time are to Australian Eastern Daylight Time.

2.4 Interpretation – Priority. If there is any inconsistency between any provision in the EULA and any provision in the Terms of Service, the Terms of Service will prevail to the extent of that inconsistency.

3 SERVICES

3.1 Provision of the Licensed Services. We will make the Licensed Services available to you: (a) under the EULA; and (b) under any Terms of Service. You acknowledge that the terms of this EULA do not constitute a sale of any aspect of the Licensed Services to you. You agree that your use of the Licensed Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features. You may access the Licensed Services on any device that has the relevant capabilities and any minimum system requirements that have been specified by us from time to time. However, you acknowledge that we do not warrant that any of the Licensed Services will be available by way of access from any particular device.

3.2 Subscriptions. In some instances, the Licensed Services (or various components of the Licensed Services) must be purchased by you as a subscription.

3.3 License. We grant to you a personal, non-assignable, and non-exclusive license to use the Licensed Services in accordance with the EULA and any Terms of Service for the duration of the EULA. This license is granted for the sole purpose of enabling you to enjoy the features of the Licensed Services in the manner contemplated by the EULA and any Terms of Service and is not capable of sublicense without our prior written consent.

3.4 Open Source Software Components. The restrictions which this document places on the use of the Licensed Services do not in any way limit your access to, use of or obligations in respect of any Open Source Software Components.

3.5 Term. The term of this EULA will continue until it is terminated in one of the ways provided for in clause 9 (Termination).

4 USE OF THE SERVICES

4.1 Your Responsibilities. You are entirely responsible for: (a) your access to the Licensed Services; (b) your use of the Licensed Services; (c) your compliance with the EULA; (d) the appropriateness, accuracy, quality, and legal integrity of your Data; (e) the means by which you acquired your Data; and (f) ensuring that your use conforms with any Terms of Service. You acknowledge that you may be required to have and maintain an internet or data connection in order to access the Licensed Services.

4.2 Prevention of Misuse. You must: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Licensed Services, and notify us promptly of any such unauthorized access or use; (b) not seek to circumvent the our methods intended to control access to the Licensed Services; (c) not operate or develop patches, software or applied programming interfaces that are intended to augment or alter the Licensed Services in a manner that is not intended or not authorized by us; and (d) use the Licensed Services only in accordance with applicable Laws.

4.3 Use of the Licensed Services. You must not: (a) make the Licensed Services available to anyone else; (b) sell, resell, rent or lease access to the Licensed Services; (c) use the Licensed Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (d) use the Licensed Services to store or transmit Harmful Code; (e) interfere with or disrupt the integrity or performance of the Licensed Services or any Third Party Applications; or (f) attempt to gain unauthorized access to the Licensed Services or our related systems or networks. You may not access the Licensed Services to monitor their availability, performance or functionality unless the reason for your doing so is to assess the Licensed Services for your own reference in circumstances where the details of your assessment are not to be published or provided to a third party.

4.4 Usage Limitations. The Licensed Services may be subject to usage limitations, such as, for example, limits: (a) on storage space; and (b) on the number of calls you are permitted to make against our application programming interfaces. You must comply with any usage limitations imposed by us.

4.5 Automated Access. All Automated Access is also subject to the EULA. No automated software or process may legally access the Licensed Services until the person who is responsible for the Automated Access has accepted the EULA. As such, any attempt to obtain Automated Access will be bound by the EULA. If you are responsible for any Automated Access, you must also comply with any directives we may make in respect of the Licensed Services using a Robots Exclusion Protocol, robots.txt file, Robots Exclusion Standard or any other directive concerning Automated Access prepared by us from time to time.

4.6 Access Information. You must keep your passwords and any confidential user identification that you use to access the Licensed Services secure. You are solely responsible to us for all activities that occur in respect of your user account for the Licensed Services, and if you become aware of unauthorized use of your user account for the Licensed Services, you agree that you will notify us immediately.

4.7 Software Versions and Licensed Services. You acknowledge that: (a) there are multiple instances of software supporting and underpinning the Licensed Services; (b) we will make that software available to you from time to time to assist your use of the Licensed Services; (c) that we will update that software from time to time. As a condition of your use of the Licensed Services, you must use the latest versions of any of our software made available to you for that use. You also consent to us updating the Licensed Services automatically without notifying you.

4.8 Restricted Purposes. You must not use the Licensed Services for any purpose that is restricted by us in our sole discretion. This includes but is not limited to purposes that: (a) promote harmful activities or substances in breach of any Law; (b) infringe a third party’s Intellectual Property Rights, or violate a third party’s rights of publicity or privacy; and (c) are fraudulent, false, misleading or deceptive.

5 THIRD PARTY PROVIDERS

5.1 Acquisition of Third Party Products and Services. You acknowledge that: (a) if you utilise any other products or services produced by other parties, including but not limited to Third Party Applications, including implementation, customization and other consulting services, and any exchange of data between you and any third party provider, is solely between you and the applicable third party provider; and (b) we do not warrant or support any Third Party Applications or any other product or service that are not a part of the Licensed Services, whether or not they are designated as “certified” or otherwise.

5.2 Third Party Applications and your Data. If you install or enable Third Party Applications for use with the Licensed Services, you acknowledge that we may allow providers of those Third Party Applications to access your Data as required for the interoperation of those Third Party Applications with the Licensed Services. We are not responsible for any disclosure, modification or deletion of your Data resulting from this type of access by Third Party Application providers.

6 PROPRIETARY RIGHTS

6.1 Reservation of Rights. Subject to the rights granted to you in the EULA, we reserve all other rights, title and interest in CB Premium Material and to the Licensed Services, including all Intellectual Property Rights in CB Premium Material and the Licensed Services. You acknowledge no Intellectual Property Rights are granted to you in the EULA other than the usage rights for the Licensed Services that are expressly described in the EULA or the Terms of Service.

6.2 Restrictions. You must not: (a) permit any third party to access the Licensed Services except as permitted in the EULA or as specified in any Terms of Service; (b) copy, modify, create derivate works of, reverse engineer, decompile or otherwise attempt to extract the source code of the software in respect of the Licensed Services; (c) copy, frame or mirror any part or content of the Licensed Services, other than copying or framing for your own personal reference; (d) reverse engineer any aspect of the Licensed Services; (e) access the Licensed Services in order to build a competitive product or service; (f) copy any features, functions or graphics of the Licensed Services; or (g) act in a manner that is otherwise inconsistent with our Intellectual Property Rights.

6.3 Ownership of your Data. Subject to the licenses you have granted to us in respect of your Data in the EULA and under any Terms of Service, we acknowledge that you own all rights, title, and interest in and to all of your Data.

6.4 Other Intellectual Property Rights. During your use of the Licensed Services, you must not utilize content in a way that infringes the Intellectual Property Rights of third parties. You must obtain the consent of the owner of the relevant Intellectual Property Rights in respect of the content you intend to use. You acknowledge that we are not liable to you or to any third party for your use of content in breach of this clause 6.4.

6.5 Information Rights and Publicity. Subject to the terms of its privacy policy (located at the "Privacy policy" section of CB Premium's website, or any other reference point that we may provide to you from time to time), we and our related parties may retain and use, information collected about you during the course of your use of the Licensed Services. We will not share information in respect of your activities with any third parties unless we: (a) have your consent; (b) are permitted to do so under relevant Laws relating to privacy; or (c) provide such information in certain limited circumstances to third parties to carry out tasks on our behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by us. When this is done, we must ensure it is subject to agreements that oblige those parties to process such information only on our instructions and in compliance with the EULA and appropriate confidentiality and security measures. By registering as a user of the Licensed Services, you also consent to the transfer of your personal information to a country outside of the country you reside in, provided that the transfer is conducted in accordance with applicable Laws.

6.6 Rights of European Union Residents. If you are a resident of a country where the European Union General Data Protection Regulation (GDPR) applies to our activities, you have a number of rights in respect of your personal information, which include:

(a) the right to have access to (and in some cases, direct us concerning) your personal information, and to obtain a copy of that personal information from us, together with information about how your personal information is processed by us;

(b) the right to correct any of your personal information that is incorrect;

(c) the right to have us erase your personal information in certain circumstances (for example, where we aren’t required by a Law to retain it); and

(d) other rights as provided under relevant Laws (see https://ec.europa.eu/info/law/law-topic/data-protection_en)

If you are not a resident of a country where the GDPR applies to our activities, you may find that a number of these rights are analogous to the rights under the Laws that deal with your own personal information. To the extent this is not the case, we nevertheless respect your personal information rights, and may, in our discretion (or as otherwise required or permitted by a Law), provide you with the same or similar rights on request.

6.7 Trade Marks. You acknowledge that you may not use our trade marks, logos, domain names or brands to promote you or your services (or in juxtaposition to them) except: (a) in accordance with any license granted under the Terms of Service; (b) in any instance where we have otherwise authorized you to do so; or (c) any instance where our trade marks, logos, domain names or brands are to be used in association with functions that permit the Licensed Services to interoperate with other services.

6.8 Suggestions. You grant to us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into the Licensed Services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Licensed Services.

7 CONFIDENTIALITY

7.1 Definition of Confidential Information. In the EULA, Confidential Information means all information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes your personal information. Our Confidential Information includes that information concerning aspects of the Licensed Services not ordinarily available to the public. Confidential Information also includes the terms and conditions of the EULA and the Terms of Service, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by any party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information. Unless authorized by the Disclosing Party in writing; (a) the Receiving Party must not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the EULA; and (b) the Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need the access for purposes that are consistent with the EULA and who have signed confidentiality agreements satisfactory to both parties.

7.3 Protection of your personal information. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of your personal information in accordance with our privacy policies as modified by us from time to time. We will not: (a) modify your personal information; (b) disclose your personal information, except where this EULA or any Terms of Service permit or require that disclosure; or (c) access your personal information except to provide the Licensed Services or prevent or address service or technical problems, or at your request in connection with customer support matters.

7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by Law to make the disclosure, provided the Receiving Party gives the Disclosing Party prior notice of the scope of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by Law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8 ACKNOWLEDGEMENTS, WARRANTIES AND DISCLAIMERS

8.1 Acknowledgement. You acknowledge that (a) the Licensed Services consist of a collection of research data combined with algorithms designed to predict microbial behaviours; (b) that the Licensed Services are intended to assist providing users with information only; and (c) that unless agreed otherwise we do not accept liability for any particular microbial outcomes affecting you.

8.2 Mutual Warranties. Each party represents and warrants that: (a) it has the legal power and capacity to enter into the EULA; and (b) it will not transmit to the other party any Harmful Code.

8.3 Disclaimer. Except as required by any Law or as set out in the EULA or Terms of Service, neither party makes any other warranties of any kind, and each party specifically disclaims all implied warranties.

9 TERMINATION

9.1 Termination by us. We may terminate the EULA at any time in writing if: (a) you have breached any provision of the EULA or the Terms of Service; (b) you have acted in a way that indicates you does not intend to comply with a provision of the EULA; (c) we are required to terminate the EULA by Law, or the operation of the Licensed Services becomes unlawful; (d) we determine that the provision of the Licensed Services is no longer profitable or viable.

9.2 Termination by you. You may terminate the EULA without notice to us simply by: (a) deregistering as a user of the Licensed Services; and (b) ceasing to use all aspects of the Licensed Services (including those that interoperate with Third Party Applications). If you terminate in this way, you will be required to pay any subscription fee payable to us up until the end of the nearest payment period that is applicable to your use of the Licensed Services. If you resume use of the Licensed Services in any way, the EULA will apply to that resumed use, whether you are Registered or not.

9.3 Commercial Effect of Termination. Any termination by you does not secure any right to a refund or credit unless specified otherwise in any Terms of Service.

9.4 Survival of Terms. Any termination by either party will not affect any rights, obligations liabilities or licenses that are either expressed in the EULA or the Terms of Service to be continuous or are intended to continue indefinitely by implication.

10 GENERAL PROVISIONS

10.1 Export Compliance. You must comply with the export Laws and regulations of any relevant jurisdictions in using the Licensed Services. In particular: (a) you warrant that you are not named on any government list of persons or entities prohibited from receiving exports; and (b) you must not access or use the Licensed Services in violation of any export embargo, prohibition or restriction.

10.2 Relationship of the Parties. The parties are independent contractors. This EULA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

10.3 No Third Party Beneficiaries. You acknowledge that: (a) we have entered into licensing arrangements to enable the provision of the Licensed Services; and (b) the licensors of the enabling technologies could be third party beneficiaries to your obligations under the EULA.

10.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under the EULA constitutes a waiver of that right. Other than as expressly stated in the EULA, the remedies set out in the EULA are in addition to, and not exclusive of, any other remedies of a party under any Law.

10.5 Severability. If any provision of the EULA is held by a court of competent jurisdiction to be contrary to any Law, the provision must be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by Law, and the remaining provisions of the EULA will remain in effect.

10.6 Conflict. If any provision of the EULA and any explicit term of the Terms of Service are in conflict, the explicit term of the Terms of Service will prevail in respect of the conflict.

10.7 Assignment. You cannot assign your rights or obligations under the EULA without our prior written consent. We can novate or assign our rights or obligations under the EULA without restriction.

10.8 Liability. Subject to any Law applying to the EULA that expressly prevents this provision, our aggregate liability from any one claim by you (whether the claim arises under this EULA, the Terms of Service or pursuant to any action in tort, negligence or otherwise) will not exceed the larger of: (a) the amount paid or payable by you to us for the Licensed Services; or (b) the cost of re-supplying the Licensed Services to you. Subject to applicable Law, in no event will we be liable to you for Consequential Losses incurred as a result of a breach of this EULA or any Terms of Service.

10.9 Amendments. We may amend the EULA from time to time by either notifying you using the Licensed Services or providing details of the amendments on our website. We will act reasonably in making any amendments.

10.10 Governing Law and Disputes. The EULA is governed by the Laws of Tasmania and the Commonwealth of Australia and disputes must be resolved in the non-exclusive courts of that jurisdiction. You agree that you will not be involved in an action as a class member in a class action and that all disputes must be pursued in your own name only. Each of the parties waive respective rights to seek or be involved in any class action under this EULA or concerning any aspect of the Licensed Services.

10.11 Entire Agreement. The EULA, together with the Terms of Service constitutes the entire agreement between the parties and supersedes all prior understandings and agreements concerning its subject matter.