EYEfi Cloud Connect - Terms and Conditions
EYEFI PTY LTD
PLATFORM USER AGREEMENT
IMPORTANT – READ THESE TERMS AND CONDITIONS CAREFULLY
PLEASE READ ALL OF THE TERMS OF THIS PLATFORM USER AGREEMENT CAREFULLY BEFORE CLICKING ON “I ACCEPT” BELOW. BY CLICKING ON THE CHECKBOX MARKED “I ACCEPT” BELOW, YOU CONFIRM YOU UNDERSTAND ALL TERMS AND THAT YOU ACCEPTANCE ALL TERMS OF THIS PLATFORM USER AGREEMENT.
IF YOU ARE ACTING ON BEHALF OF ANOTHER PERSON OR ENTITY, YOU WARRANT THAT YOU ARE AUTHORISED TO ACT ON BEHALF OF THAT THIRD PARTY.
EYEfi Pty Ltd (EYEfi) has developed browser accessible software that receives and collates data created and communicated by devices, and presents that data on the Platform. EYEfi has developed and owns, or is the lawful licensee of, all rights in the Platform.
This Platform User Agreement (Agreement) contains the terms under which each user (you or your) may access and use the Platform. By accessing the Platform or clicking the “I accept” checkbox, you indicate your agreement to all of the terms in this Agreement.
Strictly on the basis of your ongoing compliance with this Agreement, EYEfi grants you a non-exclusive, revocable, non-transferable, non-sublicensable licence to access and use the Platform and the Documentation.
The term of this Agreement and the license rights granted hereunder will commence upon your acceptance (by clicking the “accept” link) or your first use of the Platform. Your licence rights will continue provided you fully comply with the terms of this Agreement and pay the Fees to EYEfi or the Third Party Provider, as the case may be. Unless terminated in accordance with this Agreement, the term will continue indefinitely, provided always that EYEfi may terminate this Agreement upon 90 days written notice to you. Upon termination you warrant that you will cease using the Platform and discontinue using any of the Platform or Documentation except for genuine archive purposes.
Despite any other provision of this Agreement, you acknowledge and agree that EYEfi may, at its absolute discretion, terminate this Agreement and/or disable your access to the Platform upon your failure to:
Comply with this Agreement;
Promptly pay the Fees (whether directly to EYEfi or via a relevant Third Party Provider); or
Follow any reasonable instructions for use and operation of the Platform as set out by EYEfi in the Documentation.
3. Evaluation Period
EYEfi, or a relevant Third Party Provider, may provide temporary and/or limited access to the Platform to allow you to evaluate the functionality of the Platform. Any such access is not a representation that a full licence will subsequently be provided and any temporary access may be revoked without notice or reason by EYEfi or the Third Party Provider.
4. Modifications and Hosting
You may request modification of the Platform and EYEfi (or the relevant Third Party Provider, as the case may be) will be consider such request but is under no obligation to provide you with any modification. Any modification is subject to our ongoing technology development and enhancement plans and the technical capacity of the Platform and may be subject to additional fees payable by you.
The Platform is hosted in a virtual setting as determined by EYEfi in its absolute discretion. In circumstances where you request in writing to EYEfi or the relevant Third Party Provider that the Platform is hosted in a different environment, the request will be considered and may be made available provided that you pay all additional costs as determined by EYEfi including any additional time and development fees necessary relevant to such hosting.
6. Ownership of Platform and Intellectual Property
EYEfi owns and retains all rights to the Platform, including all intellectual property embodied within, and associate with, the Platform and all Documentation. This Agreement transfers to you neither title to nor any proprietary or intellectual property rights in or to the Documentation or the Platform, or to any updates or upgrades or derivative works thereof, or any copyright, patent rights, or trade marks, embodied or used in connection with the Platform, except for the rights expressly granted in this Agreement.
In its absolute discretion, EYEfi may, at any time without notice to you, upgrade, amend, alter or modify any part of the Platform, provided that such action will not result in any significant degradation in overall performance of the Platform.
7. Ownership of User Content
You retain ownership rights in any content or information you upload to the Platform (User Content) and you grant EYEfi an unlimited, royalty-free, fee-free licence to use, modify and exploit the User Content for the purpose of providing the Platform services to you and also for the purpose of EYEfi improving the Platform. You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish content you submit and you warrant that any information or document you provide to, or via, the Platform does not infringe patent, trade mark, trade secret, copyright or other proprietary rights of any other entity. EYEfi will use reasonable endeavours to maintain confidentiality of any User Content but does not guarantee any confidentiality with respect to such User Content.
Unless you have EYEfi’s prior written consent (which may be provided or withheld at its absolute discretion and with or without fee), you must not:
reverse engineer, decompile, or disassemble the Platform, or otherwise attempt to derive the source code of the Platform;
rent, lease, loan, sell, sublicense, distribute, transmit or otherwise transfer the Platform to any third party, or permit use of the Platform by any third party;
make any copy of or otherwise reproduce the Platform or any portion thereof, except for those copies otherwise necessary for use of the Platform in accordance with this Agreement;
make any modifications, enhancements or improvements to (or otherwise create derivative works of) the Platform; or
Provide your Credentials to any third party or allow a third party to gain access to the Platform.
9. Your Obligations
You agree that you are solely responsible for the following:
providing all hardware, software (including compatible computer browser software as determined by EYEfi from time to time but excluding the Platform itself), networking and communications capabilities required for use of the Platform;
keeping confidential all Credentials that are provided by EYEfi for the purpose of accessing and using the Platform;
at all times using the Platform in accordance with the Documentation and any other written instructions provided to you by EYEfi or the Third Party Provider, as the case may be;
at all times complying fully with any and all relevant laws, rules and regulations related to your use of the Platform; and
promptly notifying EYEfi if any error or anomaly is apparent from your use of the Platform.
10. Limitation of Liability
To the maximum extent permitted by law:
EYEfi is not liable for any Claim arising out of the Platform or the use to which the Platform is put or arising out of any deprivation of service or down time of the Platform. You indemnify and agree to hold EYEfi, its officers and employees (Those Indemnified) harmless from and against all Claims which may arise as a result of or in connection with the Platform. EYEfi holds the benefit of this indemnity on trust for Those Indemnified and Those Indemnified will be entitled to rely on the indemnity (including but not limited to legal costs on a solicitor and own client or indemnity basis) prior to Those Indemnified having incurred and paid such costs.
EYEfi’s liability for breach of any term, condition, guarantee or warranty is limited to one or more of the following at EYEfi’s option (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired, or (b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
EYEfi’s maximum aggregate liability for all Claims under or relating to this Agreement, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on breach or on any other basis, is limited to $100AUD.
EYEfi is not under any circumstances liable for:
special, indirect, consequential, incidental or punitive damages; or
damages for loss of profits, revenue, goodwill, bargain, anticipated savings or loss, personal injury, death, the costs arising from the loss of use of the Platform Services and the costs of any substitute and the costs of any substitute Platform Services which the Channel Partner obtains.
If the Australian Consumer Law applies to this Agreement, the following paragraph applies:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
You indemnify, defend, and hold harmless EYEfi from and against any and all Claims (including third-party Claims) arising from, in connection with, or related in any way, directly or indirectly, to: (i) your use of the Platform, the Documentation, or any other materials provided to under this Agreement or via the Platform; and (ii) your breach of any of the terms of this Agreement.
12. General Provisions
This Agreement will be construed in accordance with the laws in force in Victoria, Australia and the parties submit to the jurisdiction of the Courts of Victoria, Australia provided that if the Platform is accessed via a location outside Australia, the Australian Consumer Law will not apply.
If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
You may not, without the prior written consent of EYEfi, assign or transfer this Agreement or any of the rights granted to you in this Agreement, in whole or in part. This Agreement is binding upon and inures to the benefit of the parties, their respective successors and permitted assigns.
Nothing in this Agreement will constitute or be deemed to constitute the relationship of principal and agent or partnership between EYEfi and you. This Agreement represents the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings between the parties.
Claim means any claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred.
Credentials means your log-in access password access credentials.
Documentation means, whether in hard-copy or digital, all user guides, specifications and other documentation related to the use and operation of the Platform provided directly by EYEfi or via a Third Party Provider.
Fees means the fees payable, from time to time, by you to EYEfi or a Third Party Provider pursuant to a contract for the purpose of accessing the Platform.
Platform means the proprietary browser-accessible software platform of EYEfi, including updates and enhancements from time to time.
Third Party Provider means a third party reseller of the Platform and associated EYEfi services and to which you are contracted to pay the Fee in exchange for accessing the platform, subject to the terms of this Agreement.
Effective as of 18 October 2018