Welcome to Kuube by Bondi Labs!
Thanks for using Kuube, our simulation training and competency assessment application (“Software Service”). The Software Service is provided by Bondi Labs Technologies Pty Ltd (ABN 91 614 986 274), of New Farm, Brisbane 4005 Australia (“Bondi Labs”, “us”, “we” or “our”).
“Administrator User” means the person(s) nominated by the Licensee, as set out in the Order; which person will perform such functions as designated by the Licensee to ensure that the Licensee, through the Invited Users, is able to exercise the Licence.
“Software Service” means the Software Service licensed by the Licensor to the Licensee as set out in the Order.
“Data” means any data inputted into the Software Service by the Licensee, you or with the Licensee’s authority.
“End User” means the Administrator User and Invited User collectively or individually.
“GDPR” means European Union General Data Protection Regulation 2016/679
“Intellectual Property Rights” means all rights in copyright, patents, registered and unregistered trademarks, registered designs, trade secrets, knowhow, rights in relation to circuit layouts and all other rights of intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.
“Internet Site” means a third party internet site or store nominated by Bondi Labs from time-to-time for the purposes of allowing the Licensee and you to download, access and/or use the Software Service.
“Invited User” means any person other than the Administrator User, who uses the Software Service with the authorisation of the Licensee. The number of permitted Invited Users at any one time is set out in the Order.
“Licence” means a worldwide, fee bearing, non-exclusive, non-transferable, non-sublicensable licence during the Term to use the Software Service.
“Licensee” means a party that has entered into an Order with a Licensor to access and use the Software Service.
“Licensor” means a party granted the rights by Bondi Labs to licence and distribute the Software Service.
“Order” means the Order Details Agreement entered into between the Licensee and the Licensor which contains details of: (i) the simulation training and competency assessment modules to be accessed and used by the Licensee; (ii) the applicable Licence Fees and Payment Terms; (iii) the Administrator User(s); (iv) the number of Invited Users for which the Licensee wishes to establish a Bondi Labs hosted Invited User account; (v) the term of the Licence (“Term”).
Licence to Software Service
3.1 A Licensor has granted the Licensee the Licence on agreed terms.
3.2 The Licensee and you will ensure that the Software Service is protected at all times by it from access, use, damage or destruction by any person not authorised to access or use the Software Service.
3.3 When accessing and using the Software Service, the Licensee and you must not:
3.3.1 attempt to undermine the security or integrity of Bondi Labs’ computing systems or networks or, where the Software Service are hosted by a third party, that third party’s computing systems and networks;
3.3.2 use the Software Service in any way which may impair the functionality of the Software Service or Internet Site, or any other systems used to deliver the Software Service;
3.3.3 impair the ability of any third party user to access and use the Software Service or Internet Site;
3.3.4 attempt to gain access to any materials other than those to which the Licensee has been given express permission to access or to the Internet Sites on which the Software Service is hosted;
3.3.5 transmit, or input into the Software Service or Internet Site, any: (a) files that may damage any other person’s computing devices or software, (b) content that may be deemed to be offensive, or (c) material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which the Licensee does not have the right to use); or
3.3.6 attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Software Service or to operate the Internet Site except as is strictly necessary to use either of them for normal operations.
No Charge Services
4.1 We may offer certain Software Services to you at no charge, including free accounts, trial use, demo accounts and access to pre-release and beta products (“No-Charge Services”). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted for the period designated by us. We may terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any support and maintenance, warranty, and indemnity obligations.
5.1 This Section shall only apply if and to the extent that GDPR applies to any of the data with which you use the Software Service and/or No Charge Services. If this Section applies, the provisions of Appendix 1 (Data Protection Compliance) and Appendix 2 (Data Processing Agreement) shall apply.
6.1 To activate the Software Service you must complete an Order which is available by contacting firstname.lastname@example.org.
6.2 You may need to register for an account in order to access or use any Software Service. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
6.3 Access codes and passwords to the Software Service are provided to the Licensee and you on agreed terms.
6.3.2 The Licensee and you will ensure that all access codes and passwords required to access the Software Service are kept secure and confidential. The Licensee must immediately notify the Licensor of any unauthorised use of the Licensee’s passwords or any other breach of security in relation to the provision of the Software Service and Bondi Labs will reset the Licensee’s password. The Licensee and you must take all actions that Bondi Labs deems reasonably necessary to maintain or enhance the security of Bondi Labs’ computing systems and networks and the Licensee’s access to the Software Service.
6.4 The Licensee will determine who is an Invited User and the level of access granted to the Invited User.
6.5 The Licensee is responsible for all Invited Users’ use of the Software Service. The Licensee controls each Invited User’s level of access to the relevant Software Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person will cease to be an Invited User or shall have that different level of access determined by the Licensee, as the case may be.
6.6 Your Administrator User(s) may have the ability to access, monitor, use, or disclose data available to Invited Users within the Invited User accounts. You will obtain and maintain all required consents from Invited Users to allow: (i) your access, monitoring, use and disclosure of this data and Bondi Labs providing you with the ability to do so and (ii) Bondi Labs to provide the Software Service.
6.7 If there is any dispute between the Licensee and an Invited User regarding access to the Software Service, the Licensee shall decide what access or level of access to the relevant Data or Software Service that Invited User shall have, if any.
6.8 You agree that our responsibilities do not extend to the internal management or administration of the Software Service for you and that we are merely a software provider.
6.9 You agree to receive notices and material from us regarding upgrades, updates, new modules and product features associated with the Software Service that become available from time-to-time.
Term & Renewal
7.1 Software Services are provided on a subscription basis for a set Term as specified in your Order. Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Term (and you will be charged at the then-current rates) unless you cancel your subscription in writing or through your account at the Website. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
7.2 If Bondi Labs does not want the Software Service to renew, then it will provide you written notice to this effect. This notice of non-renewal will be effective upon the conclusion of the then current Term.
Billing and Payment
8.1 You agree to pay all Fees in accordance with your Order. Unless otherwise specified in your Order, you will pay all amounts at the time you place your Order. All amounts are non-refundable, non-cancellable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of the Software Service beyond the current agreed Term or any Software Service upgrades or feature enhancements. If you add Invited Users during your Term, we will charge you for the increased number of Invited Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill you (including via your credit card) for renewals, additional Invited Users, and unpaid fees, as applicable.
8.2 You must elect one of the following billing options when registering and placing an Order for the Software Service:
Monthly Plan. If you select this Option, you will pay for the Software Service on a monthly basis. We will bill you: (i) Fees based upon the number of Invited User accounts you require. We will provide you with the monthly rate for the Software Service when you Order the Software Service, and will use this rate to calculate the Fees, for your monthly charges.
Annual Plan. If you select this option, you will pay for the Software Service on an annual basis. We will bill you: (i) Fees based upon the number of Invited User accounts you require. We will provide you with the annual rate for the Software Service when you Order the Software Service, and will use this rate to calculate the Fees, for your annual charges.
8.3 Fees for Orders where you are paying with a credit card, debit card or other non-invoice form of payment are due the month prior to which you receive the Software Service. For credit cards, or debit cards, as applicable: (i) we will charge you for all applicable Fees when due and (ii) these Fees are considered overdue after the end of the month during which you receive the Software Service.
8.4 Fees for Orders where we issue an invoice are due fourteen days after the invoice date, and are considered overdue after such date.
8.5 We may enable other forms of payment by making them available on the Website. These other forms of payment may be subject to additional terms which you may have to accept prior using the additional forms of payment.
8.6 Overdue payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal or collection fees) incurred by us in collecting such delinquent amounts, except where such overdue amounts are due to our billing inaccuracies.
8.7 You will have thirty days to pay overdue Fees. If you do not pay overdue Fees within thirty days, we will automatically suspend you use of the Service. The duration of this suspension will be until you pay all outstanding Fees.
8.8 If you have a monthly billing plan or an annual billing plan commitment, we will continue to charge you Fees during suspension for non-payment and you must pay all outstanding Fees in order to resume use of the Software Service.
8.9 If you remain suspended for non-payment for more than sixty days, we may terminate this Agreement.
8.10 You are responsible for any duties, customs fees, or taxes (other than our income tax) associated with the sale of the Software Service, including any related penalties or interest (“Taxes”), and you will pay us for the Software Service without any reduction for Taxes. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority. If you are required by law to withhold any Taxes from payments to us, you must provide us with an official tax.
9.1 Except as expressly stated in this Agreement, Bondi Labs does not make any representation or warranty (express or implied) whatsoever about the Software Service.
9.2 Bondi Labs does not warrant that the use of the Software Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software Service, including Internet Sites, computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Software Service. Bondi Labs is not in any way responsible for any such interference or prevention of the Licensee’s access to or use of the Software Service.
9.3 Without limiting the foregoing, Bondi Labs does not warrant that the Software Service will meet the Licensee’s requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
9.4 It is the Licensee’s sole responsibility to determine that the Software Service meet the needs of the Licensee’s business and are suitable for the purposes for which they are used.
Limitation of Liability
10.1 Bondi Labs shall not be under any liability to the Licensee, you, any affiliated entity or any third party in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the supply or use of the Software Service or results therefrom.
10.2 To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to supply of the good or service ordered by you again or paying for their resupply.
10.3 Notwithstanding the above, to the maximum extent permitted by law, in no event shall our aggregate liability for any claims arising out of or related to these Terms exceed the greater of one hundred Australian dollars ($100) or the amount that you paid, if any, to us for access to or use of the Software Service during the six months period immediately prior to the event giving rise to such liability.
11.1 The Licensee and you shall indemnify and hold Bondi Labs and its related parties, officers, agents and employees (“Indemnified Parties”) harmless from and against any and all action, losses, damage, judgements, awards, settlement and expenses, directly or indirectly arising from or connected with any claim, demand, law suits or legal proceedings arising out of the accuracy of the Software Service, of any work produced from the Software Service, the use of the Software Service by the Licensee, you, an affiliated entity or any third party, or the unauthorised use of the Software Service by the Licensee, you or an affiliated entity.
11.2 The Licensee shall be solely responsible for the use, supervision, management and control of the Software Service including without limitation, any exercise of the Licence by you or an affiliated entity.
12.1 We won’t be held liable for any delays or failure in performance of any part of the Software Service, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers
Obligations of the Licensee and You
13.2 The Licensee shall notify the Licensor immediately if the Licensee or you become aware of any unauthorised use of the whole or part of the Software Service by any person.
13.3 You are responsible for responding to a request from a third party for records relating to an Invited User's use of the Software Service (“Third Party Requests”). Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the Invited User permitting the disclosure. We will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify you of the receipt of a Third Party Request; (b) comply with your reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide you with the information or tools required for you to respond to the Third Party Request. You will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact us only if you cannot reasonably obtain such information.
14.1 By using the Software Service, you acknowledge that it is your sole responsibility to ensure the confidentiality and security of any information transmitted from or stored on a device for the purposes of the Software Service, for all transactions and other activities in the Invited User’s name, whether authorised or unauthorised. You understand that use of the Software Service involves transmission of your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers
15.1 The Licensee and you shall take all reasonable steps to maintain and safeguard the confidentiality of the Software Service and to ensure that its employees maintain the confidentiality of and use the Software Service solely for their authorised use.
16.1 General: Title to, and all Intellectual Property Rights in the Software Service and any documentation relating to the Software Service remain the property of Bondi Labs.
16.2 Ownership of Data: Title to, and all Intellectual Property Rights in, the Data remain the property of the Licensee. However, the Licensee’s access to the Data is contingent on full payment of the Licence Fee when due. The Licensee grants Bondi Labs a licence to use, copy, transmit, store, and back-up the Licensee’s information and Data for the purposes of enabling the Licensee to access and use the Software Service and for any other purpose related to provision of services to the Licensee.
16.3 To facilitate academic research, industry benchmarks, indices and enhancements to the Software Service, the Licensee grants Bondi Labs a non-exclusive, worldwide, irrevocable, royalty-free licence to use the Data derived from the Licensee’s use of the Software Service in an aggregated, anonymous and non-identifiable manner.
16.4 Backup of Data: Bondi Labs engages an Internet Site to maintain copies of all Data inputted into the Software Service. Bondi Labs does not make any guarantees or give any warranty that there will be no loss or corruption of Data. Bondi Labs expressly excludes liability for any loss of Data no matter how caused.
Termination of the Licence
17.2 Upon termination of access to the Software Service all rights granted by Bondi Labs or the Licensor to the Licensee shall cease immediately.
17.3 Upon termination of access to the Software Service all copies of Confidential Information shall be erased from all forms of storage held by the Licensee.
19.1 The Disclaimer clause 9, Limitation of Liability clause 10, Indemnity clause 11, Force Majeure clause 12, Confidentiality clause 13 and Intellectual Property clause 16 shall continue to have full force and effect following termination of access to the Software Service.
21.4 Your use of any website or software that is not provided by us to access or download the Software Service shall be governed by the terms and conditions applicable to that website or software. We are not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Software Service.
21.5 Any notices to you may either be posted on the Site or given in writing (which may be by email) to the address last notified by you to Bondi Labs. Any notices to Bondi Labs, and any questions, concerns or complaints relating to the Software Service shall be in writing and addressed to: Bondi Labs, PO Box 445 Brisbane QLD 4001 Australia or given by email to: email@example.com.
21.7 This Agreement, and any rights and Licences granted hereunder, must not be transferred or assigned by you without our prior express written consent. We may, without restriction, assign this Agreement and our rights and delegate our obligations hereunder to: (i) any of our affiliates or subsidiaries, or (ii) a third party participating in a merger, acquisition, sale of shares or assets, change of control, corporate reorganisation or similar transaction in which Bondi Labs is participating.
Appendix 1 (Data Protection Compliance)
In this Appendix and in Appendix 2 (Data Processing Agreement):
Data Protection Laws means the EU Data Protection Laws and the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the EU Data Protection Laws in relation to the processing of personal data and sensitive personal data.
EU Data Protection Laws means, up to and including 24 May 2018, any legislation in force from time to time which implements the EU Directive 95/46/EC and relevant national implementations of the same and, with effect on and from 25 May 2018, means the GDPR and any relevant national implementations of the same; personal data, sensitive personal data, consent controller, processor, data subject and processing mean those concepts, roles and activities as defined in the applicable EU Data Protection Laws and on and from 25 May 2018 sensitive personal data means those classes of personal data that are described in Article 9 of the European General Data Protection Regulation 2016/679) or, where relevant, equivalent concepts, roles and activities as described in other Data Protection Laws.
We are the controller in respect of personal data and sensitive personal data, such as account registration details that we collect directly from users of the Software Services (End Users) and users of No-Charge Services, and which we use for the purposes of our business.
You are the controller and we are the processor in respect of any other personal data and sensitive personal data (including within Your Modifications) that is uploaded by End Users and/or users of No-Charge Services including data, templates, information, content, code, video, images or other material of any type (Materials), or which is provided by your Administrator Users (see Section 6 above).
On and from 25 May 2018, to the extent that the Software Services and/or Non-Charge Services comprise the processing of personal data or sensitive personal data where we are the processor and you are the controller and the processing of personal data or sensitive personal data is subject to the GDPR:
you will comply with the requirements of the GDPR as the same apply to you as controller of the personal data or sensitive personal data; and
There is a lawful basis for the collection and processing of personal data and/or sensitive personal data; and
Appendix 2 (Data Processing Agreement)
The provisions of this Appendix (Data Processing Agreement) form part of the Agreement to the extent that Section 4 of the Agreement applies.
Bondi Labs shall:
process personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by European Union or the national law of an EU member state to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
implement appropriate organisational and technical measures as required pursuant to Article 32 (security of processing) of the EU General Data Protection Regulation 2016/679.
respect the conditions for engaging another processor referred to in paragraphs 2 and 4 of Article 28 (processor) of the EU General Data Protection Regulation 2016/679;
taking into account the nature of the processing, assist the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the EU General Data Protection Regulation 2016/679;
assist the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the EU General Data Protection Regulation 2016/679 taking into account the nature of the processing and the information available to the processor;
at the choice of the controller, delete or return all the personal data to the controller after the end of the provision of services relating to processing, and delete existing copies unless EU law or the national law of an EU member state or another applicable law, including any Australian state or Commonwealth law to which the processor is subject requires storage of the personal data;
make available to the controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 (processor) of the EU General Data Protection Regulation 2016/679 and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller (in each case at the controller's cost).