Terms & Conditions

TOKN Software User Agreement

This User Agreement (Agreement) is a legally binding agreement and governs the licensing and use of the TOKN software from TOKN Pty Ltd (ACN 608 143 666) (We, Us or Our). By clicking “I agree” or by installing or using the Software, you (You or Your) acknowledge and agree that You have read and understood the Agreement and agree to be bound by its terms and that if You are using the Software on behalf of an entity other than Yourself, You have the power and authority to bind that entity and consent to the Agreement.

1 DEFINITIONS

The following terms apply to this Agreement:

Confidential Information – means all trade secrets, ideas, know how, concepts and information whether in writing or otherwise relating in any way to Us or to You, Our sublicensees, agents and employees, Your or Our affairs or businesses, sales, marketing or promotional information, this Agreement including any such information in Our or Your power, possession or control concerning or belonging to any third party, but does not include information that:

(a) is, or becomes part of, the public domain otherwise than by breach of this Agreement by You or Us or by a breach of confidentiality;

(b) is lawfully obtained by either party from another person without any restriction as to use and disclosure;

(c) was in the receiving party’s possession prior to disclosure to it by You or Us; or

(d) is developed independently by You.

Developed Applications – means any applications that You develop using the Software.

Documentation – means all user, operating and technical documentation that is provided to You in relation to the Software.

Fees – means the First Term Subscription Fee, the Renewal Term Subscription Fee and any additional fees, including any Technical Support Fee, that You and Us agree are payable under this Agreement or an Order.

First Term – means the initial one (1) month period of this Agreement.

First Term Subscription Fee – means the fee owed by You and specified in the Order for the licence to use the Software for the First Term.

Free Trial Period – means a one (1) month period in which the Software is provided to You free of charge as a trial.

Intellectual Property Rights – means all present and future rights and interests arising as a result of intellectual activity whether capable of protection by statute, common law or equity including copyright, and all rights in relation to inventions, registered and unregistered trademarks (including service marks), registered and unregistered designs, circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields under the laws of any jurisdiction throughout the world.

Moral Rights – has the same meaning as the term has in Part IX of the Copyright Act 1968 (Cth).

Order – means an order for a licence for the Software placed through Us or through the Website.

Our Intellectual Property Rights – means the Intellectual Property Rights in the Software and Documentation, but excludes Your Confidential Information and any Developed Applications.

Our Privacy Policy – means the privacy policy available at https://www.tokntechnology.com/privacy.html.

Renewal Term Subscription Fee – means the fee owed by You to Us to extend the licence and this Agreement for the Renewal Term.

Renewal Term – means the one (1) month period that starts at the end of the First Term and includes each subsequent Renewal Term.

Service Credit means the amount by which the Fees paid by You in any given month will be reduced for Our failure to meet a Service Level Requirement during that month, as calculated in accordance with Schedule 1.

Service Level Requirements means the minimum availability of cloud-based Software provided under this Agreement as specified in Schedule 1.

Services – means any services that We provide to You in relation to the Software or Your use of the Software under this Agreement.

Software – means the TOKN Enterprise Mobility Management Suite, the TOKN Application Management, Device Management and Development Studio tools, all applications developed by TOKN and all TOKN mobile application software which is licensed to You under an Order, and includes any updates, upgrades, modifications to that software and the Documentation.

Support Services – has the meaning given to that term in clause 8.1.

Technical Support Services – has the meaning given to that term in clause 8.2.

Technical Support Fee – means the fee payable for Technical Support Services as set out in an agreement between You and Us for Technical Support Services.

Term – means the First Term and any subsequent Renewal Term.

User – means individuals who are authorised by You to use the Software and for whom the Fees have been paid pursuant to an Order, and who are identified by a unique email address that may not be shared with other individuals.

Warranty Period – has the meaning given to that term in clause 10.1.

Website – means the website available at https://www.tokntechnology.com/ or the website of a partner of Ours who is authorised to distribute the Software.

Your Information – means all data and information relating to You, Your business operations or personnel, in whatever form that information may exist, including as stored in or accessed through the Software, and also including any personal information (as defined in the Privacy Act 1988 (Cth)).

2 LICENCE

2.1 For Software licenced under an Order, We grant You a non-exclusive, nontransferable, licence to use the Software on the terms of this Agreement for the Term specified in the Order.

2.2 You may only use the Software for the number of Users specified in the Order.

3 SCOPE OF USE

3.1 You may only use the Software for Your internal business purposes unless expressly authorised otherwise under an Order.

3.2 You may not:

(a) reverse engineer, reverse compile or decompile the Software or try to access or discover its source code or any trade secret related to the Software;

(b) remove or obscure any notice relating to Our Intellectual Property Rights;

(c) use the Software to operate a service bureau, software as a service (SaaS), hosting service or other similar service;

(d) copy the Software, except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;

(e) sell, resell, rent, lease, sub-licence, loan, translate, merge, adapt, vary, alter or modify 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 programs;

(f) sell, resell, licence or distribute for profit any Developed Applications;

(g) include any Developed Applications in templates of any nature for distribution or sale to third parties; or

(h) use the Software to create any software that is substantially similar in its expression to the Software.

3.3 You shall:

(a) use reasonable efforts to prevent unauthorised access to or use of the Software and immediately notify Us if You become aware of any unauthorised use of the Software;

(b) be responsible for Users’ compliance with this Agreement;

(c) be solely responsible for the accuracy, quality, integrity and legality of Your Information and the means by which You acquired Your Information; and

(d) if applicable, keep all copies of the Software secure and maintain accurate and up-to-date records of the number and locations of all copies of the Software.

3.4 You acknowledge that We may incorporate technical features into the Software to enforce this Agreement.

4 FREE TRIAL

4.1 We will make the Software available to You for ten (10) Users free of charge until the earlier of:

(a) the end of the Free Trial Period; or

(b) the date that an Order is placed by You.

4.2 For the duration of the Free Trial Period, You are granted a worldwide, limited, nonexclusive, non-transferable licence to use the Software for personal and domestic purposes only.

4.3 At the end of the Free Trial Period, unless You place an Order to continue using the Software, you will lose all access to the Software and any Developed Applications.

4.4 Notwithstanding anything in clause 10, during the Free Trial Period the Software is provided “as-is” without any warranty.

5 RECORDS INSPECTION

You acknowledge that We may audit the number of Users that You have for the Software. If, during an audit, You are found to have exceeded the number of Users that You have paid the Fees for under the relevant Order, You agree to pay the relevant Fees for each excess User of the Software.

6 PROVISION OF INFORMATION

6.1 You must provide Us with Your Information when You place an Order with Us and in order for Us to enable You to use the Software.

6.2 Our use of Your Information is subject to Our Privacy Policy. You agree to provide Us with current, complete and accurate Information and We agree not to sell or disclose Your Information to third parties without Your consent. Information about how to access or make complaints in relation to Your Information is available in Our Privacy Policy.

6.3 We acknowledge and agree that You retain ownership of Your Information. You agree to grant Us a non-exclusive, transferable, perpetual, irrevocable, fully paid up licence to use Your Information for the purpose of providing the Software and Services to You.

6.4 You irrevocably consent to Us, Our employees, servants, agents, licensees and assigns, doing any acts or making any omissions that constitute a breach of Your Moral Rights in any information or data that You provide to Us or create using the Software, including the right to not name You as the author and amending any part of the information and You agree that Your consent is given freely and not under duress of any kind. You further agree that We may use, adapt, translate, commercialise, exploit (including granting Our customers the rights to do the same) and treat Your Information in any way without You asserting any of Your Moral Rights in relation to Your Information.

7 FEES

7.1 When You place an Order, You agree to pay the First Term Subscription Fee as specified in the Order.

7.2 You must pay a Renewal Term Subscription Fee to use the Software for a Renewal Term.

7.3 We may increase the Fees at any time to reflect changes in Our standard rates and charges.

7.4 The Fees are exclusive of all goods and services tax (GST), sales, use, value-added and other taxes and duties other than tax owed on Our net income.

8 SOFTWARE SUPPORT

8.1 If You have paid the First Term Subscription Fee and any Renewal Term Subscription Fee for the relevant Term, We will provide technical consultation for the Software and You will receive updates and new version releases of the Software provided such updates and new release are generally made available to other customers using the Software (Support Services). The Support Services will be provided to You in accordance with the terms of the separate agreement between You and Us for the provision of the Support Services.

8.2 If You have paid to Us the Technical Support Fee, We will provide direct technical assistance in relation to the Software to You by telephone (Technical Support Services). The Technical Support Services will be provided to You in accordance with the terms of the separate agreement between You and Us for the provision of the Technical Support Services.

9 CONFIDENTIAL INFORMATION

We and You agree not to disclose, duplicate or otherwise reproduce, directly or indirectly, each other’s Confidential Information in whole or in part. We and You further agree to use each other’s Confidential Information solely for the purposes of fulfilling each other’s obligations under this Agreement.

10 LIMITED WARRANTY

10.1 We warrant that for a period of 90 days from the date of the Order (Warranty Period), the Software will perform substantially in accordance with its specifications contained in the Documentation. Our entire liability and Your sole remedy under this warranty is limited to Our reasonable commercial efforts to correct or provide a work around for any reproducible error in the Software provided that You have given us Notice of the error during the Warranty Period.

10.2 We do not warrant that the Software will operate uninterrupted or error free or that the Software will function with other hardware or third party software.

10.3 To the maximum extent permitted by law, the warranties set forth in this clause 10 are in lieu of all other warranties, express, statutory, and implied, including, but not limited to, the implied warranties of accuracy, quiet enjoyment, non-infringement, merchantability and fitness for a particular purpose.

10.4 The warranties set forth in this clause 10 are expressly subject to the limitation of liability in clause 13 and apply to You only and not to any third party.

11 AVAILABILITY

11.1 When providing cloud-based Software only, we agree to meet the Service Level Requirements set out in Schedule 1.

11.2 Subject to clause 11.3, if We have failed to meet a Service Level Requirement in any given calendar month, Service Credits will be payable by Us as specified in Schedule 1. You and We agree that the Service Credits are a genuine pre-estimate of the loss likely to be suffered by You as a result of Our actions, and do not constitute a penalty.

11.3 If you become eligible to receive a Service Credit, You must notify Us within 30 days from the end of the month in which You became eligible to receive the Service Credit that You wish to claim the Service Credit. If You fail to notify Us in accordance with this clause

11.3 You will be deemed to have forfeited Your right to receive the Service Credit.

11.4 Service Credits constitute Our entire liability and Your sole remedy under this Agreement for Our failure to meet the Service Level Requirements.

11.5 Notwithstanding anything in this clause 11, We do not guarantee availability in relation to any Developed Application or non-cloud based Software.

12 INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY

12.1 You agree that We own Our Intellectual Property Rights in the Software, including improvements, modifications or enhancements to the Software and that You obtain no right or interest in the Software or any part of the Software. You also agree that You have no right to have access to the Software in source code form other than as expressly provided in this Agreement. You agree that We may use Our Intellectual Property Rights to further develop, improve and promote the Software.

12.2 Except for Developed Applications created during a Free Trial Period, all Intellectual Property Rights in any Developed Applications will vest in You upon creation. The Intellectual Property Rights in Developed Applications created during a Free Trial Period will vest in Us upon creation unless an Order is placed to continue using the
Software.

12.3 Subject to clause 12.4, if We are held by a court of competent jurisdiction to have infringed a third party’s copyright in a country where You are authorised to use the Software, then We may at Our own expense (and at Our option):

(a) modify the Software so that it becomes non-infringing;

(b) obtain for You a licence to continue to use the Software; or

(c) if 12.3(a) or 12.3(b) cannot be accomplished on terms reasonable to Us, remove any infringing work from You and refund to You the last payment made for a First Term Subscription Fee or Renewal Term Subscription Fee.

12.4 We are not liable under clause 12.3 if the infringement results directly or indirectly
from:

(a) Your use of the Software other than in accordance with the Documentation or in a manner that is in breach of the Agreement:

(b) unauthorised copying, modification, adaptation or translation of the Software; or

(c) use or operation of the Software in combination with equipment, software, materials or services not authorised by Us, and You indemnity Us, and will keep Us indemnified, for all losses, costs, expenses and demands that arise from or in connection with the foregoing.

12.5 This clause 11 states Our exclusive liability with respect to any claim of intellectual property infringement or other misappropriation and is in lieu of all other remedies, liabilities and obligations.

13 LIMITATION OF LIABILITY AND INDEMNITY

13.1 To the maximum extent permitted by law, We are not responsible for and We specifically disclaim all liability for any loss, liability, damage (whether direct, indirect or consequential), personal injury or expense of any nature whatsoever which may be suffered by You or any third party that may be attributable, directly or indirectly, to the Software, the Services or to Your use of the Website or any Developed Applications. We are not liable for any loss or damage that may arise in connection with Your use of the Software, Developed Applications or the Website and in no event are We liable for indirect, special, incidental or consequential damages even if We have been notified of the possibility of such damage and notwithstanding any failure of essential purpose of any limited remedy of any kind.

13.2 The Software provided during the Free Trial Period is for domestic and private use only. If, during the Free Trial Period, You use the Software for any commercial, business or resale purpose We will have no liability to You for any loss of profit, loss of business, business interruption, or loss of business opportunity.

14 AUSTRALIAN CONSUMER LAW

Under the Australian Consumer Law included in the Competition and Consumer Act 2010 (Cth) (ACL), consumers have certain rights which cannot be excluded. Nothing in this Agreement will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified. This Agreement must be read subject to these statutory provisions. Subject to any consumer rights under the ACL and to the extent permitted by law, We limit Our liability in respect of any claim under those provisions, at Our option, to re-supplying the Software or Services again; or paying the cost of having the Software or Services supplied again.

15 TERMINATION

15.1 We may terminate this Agreement immediately by notice to You if You breach a provision of this Agreement and fail to remedy the breach within 14 days of Our notice to You.

15.2 Either party may terminate this Agreement immediately by written notice if the other party goes into liquidation or bankruptcy or ceases, or indicates that it is about to cease, carrying on business.

15.3 Upon termination, You are no longer permitted to use the Software and You must immediately cease to use it and, if applicable, delete or destroy all copies of the Software in Your possession.

15.4 Termination of this Agreement does not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination.

16 GOVERNING LAW

This Agreement and Your use of the Website are governed by and are to be construed in accordance with the laws of Western Australia. You and We irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Western Australia and courts entitled to hear appears from those courts and waive any right to object to any proceedings being brought in those courts.

17 ENTIRE AGREEMENT

This Agreement contains the entire agreement and understanding between You and Us about the Software and all prior agreements and representations made between You and Us are superseded by this Agreement.

18 EXPORT

You represent and warrant that the Software will not be downloaded or used in, or transported to, a country that is subject to an Australian government embargo, or has been designated by the Australian Government as a “terrorist-supporting” country. You must not export or re-export, or permit exportation or re-exportation of the Software in violation of any export provisions of Australia or any other applicable law.

19 GENERAL PROVISIONS

19.1 This Agreement does not create any partnership, joint venture or agency relationship between You and Us.

19.2 Neither We nor You may enter into any agreements or incur any liabilities on behalf of the other party without the other party’s prior written consent nor may represent to any person that it has any authority to do so.

19.3 You agree that We can use Your logo in presentations to prospective users and customers and on Our Website. All other publicity is subject to Our prior written approval.

19.4 No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.

19.5 We may assign Our rights under this Agreement without Your consent. Neither this Agreement nor the Software may be sold, leased, assigned, sublicensed or transferred by You, in whole or in part without Our prior written consent.

19.6 Any provision of this Agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision will, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.

SCHEDULE 1 – SERVICE LEVEL REQUIREMENTS

In providing cloud-based Software under this Agreement, We agree that We will aim to achieve a 99.9% Uptime Percentage for each calendar month. The Uptime Percentage will be calculated on a monthly basis in accordance with the following formula:

A% = ((S – D) ÷ S) X 100

Where:

  • S = business hours during the month (not including scheduled downtime)
  • D = downtime aggregate hours (during business hours) during the month
  • A% = Uptime Percentage

If we fail to meet the Uptime Percentage in any one calendar month period, Service Credits will be payable as follows:

In no circumstances will the Service Credits for a particular month exceed 50% of the Fees payable for that month.

Note: We are not responsible for Your access to the TOKN Software.