Australia
July 2024
1.1. This End User Agreement (Agreement) is issued by Operative Intelligence Pty Ltd ACN 649 022 560 of Office 1/233 Barker Street, Castlemaine VIC 3450 (Operative Intelligence).
1.2. This Agreement applies if a customer (Customer) agrees to purchase any Service (as defined below) through a reseller or distributor authorised by Operative Intelligence to resell or distribute the Service (Authorised Reseller). This Agreement applies in addition to and forms part of the agreement or order between the Customer and the Authorised Reseller.
1.3. Each time the Customer signs or otherwise accepts an order for Services from an Authorised Reseller (Order), the Customer acknowledges and agrees that it creates a separate binding agreement between the Customer and Operative Intelligence on the terms of this Agreement and starts on the date the Customer signs the Order (Effective Date). Details of the Services, applicable fees, subscription duration, and specific licence or subscription terms will be set out in the Order.
Operative Intelligence will provide Customer with access to the online, software-as-a-service technology platform set forth in an applicable Order Document (the Service). Customer may, during the term set out in the applicable Order, access and use Service solely for Customer’s business purposes in its own contact centre analytics - and only in accordance with any end user technical documentation provided with the Service (Documentation). Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords in its possession.
Customer shall not (and shall not allow any third party to): (a) rent, lease or, except as agreed to by Operative Intelligence in writing (email is sufficient), otherwise provide any part of the Service to any third party; (b) use the Service to help develop, or help provide to any third party, any product or service competitive to the Service, (c ) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to Operative Intelligence), (d) modify or create derivatives of any part of the Service or any Documentation, or (e) remove or obscure any proprietary or other notices contained in the Service or Documentation.
Any software that is provided by Operative Intelligence (Software) will only be (i) installed within the Customer’s environment (which, for clarity, may include Customer’s environment as hosted by one of its third party providers) and (ii) used for the purposes of using the Service. Any software will be included in the definition of “Service” (and only used in object code form).
The Services may offer features designed to interoperate with third-party software applications and services, including those provided by Customer (Third-Party Applications). Operative Intelligence cannot guarantee the continued availability of any Third-Party Application and is not responsible for the interoperation of Third-Party Applications with the Services. Any use by Customer of Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third-Party Application provider. If Customer chooses to use a Third-Party Application with the Services, Customer grants Operative Intelligence permission to allow the Third-Party Application and its provider to access Customer Data and information about Customer’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Services. Operative Intelligence is not responsible for any act or omission by a Third-Party Application.
Support for the Service will be provided by the Authorised Reseller as set out in the Order.
Ownership. Customer owns all Customer Data, which means:
3.1.1. all raw data, information, recordings, files, and other content (including, without limitation, customer interaction and transcript data and all related meta-data) that Customer makes available to Operative Intelligence for the purpose of utilising the Service, or that the Software receives from Customer’s systems or networks; and
3.1.2. if Customer is a for-fee customer subscribed to at least an annual term under the Order, all redacted transcripts and data classifications generated by the Service from the processing of the data referenced in Section 3.1.1.
For clarity, if the Services are being used on a trial, evaluation, or no-fee basis, no intellectual property rights are assigned with respect to output data/results or data classifications generated by the Service.
With respect to Section 3.1.2, Operative Intelligence hereby makes all assignments necessary to achieve such ownership.
Notwithstanding the foregoing, data visualisations, and data derived in whole or part from other Operative Intelligence data sources, is not Customer Data.
Customer hereby grants each of Operative Intelligence and Authorised Reseller a worldwide, non-exclusive, royalty-free, licence to use, copy, reproduce, distribute, prepare derivative works of, display and perform the Customer Data, to the extent appropriate to provide the Service and any related support services.
Customer represents and warrants that: (i) Customer has all right, power, authority, and consent necessary to provide Customer Data to Operative Intelligence and Authorised Reseller for all purposes hereunder, (ii) the Customer data, nor its provision by Customer hereunder, nor its use by Operative Intelligence or Authorised Reseller as permitted hereunder, will infringe or violate any laws, regulations, generally accepted industry guidelines, or third party rights (including, without limitation, privacy rights). Customer is responsible for the accuracy, quality and legality of Customer Data. Customer must provide its end users with a legally compliant privacy policy to ensure all rights to collect and use Customer Data hereunder.
Operative Intelligence will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data.
During the thirty (30) days period immediately following expiration of the Service, Customer may request Operative Intelligence provide Customer with a copy of its Customer Data in a reasonably requested form. After thirty (30) days, Operative Intelligence may delete all data.
Notwithstanding anything herein to the contrary and unless otherwise set out in the Order, Operative Intelligence may retain (and use including after expiration of the Service) Customer Data in an anonymised and aggregated form for the purpose of analysing and improving the Service, including, without limitation, the machine learning algorithms underlying the Service. Such data will not be publicly disclosed in any manner that is capable of identifying Customer.
Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder (except for the output referenced in Section 3.1.2). Customer agrees that Operative Intelligence or its suppliers retain all right, title and interest in and to (i) the Service and Documentation and (ii) any intellectual property it develops hereunder.
In the event Customer provides Operative Intelligence or Authorised Reseller with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Service (Feedback), Customer shall and hereby does grant Operative Intelligence (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sub licensable, transferrable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback. Operative Intelligence acknowledges that Feedback is provided “AS IS”.
Customer must pay the fees for the Service to the Authorised Reseller in accordance with the terms of the Order.
This Agreement is effective as of the Effective Date and continues until: the Services expire (as set out in the Order); the Services are terminated under the agreement between Customer and Authorised Reseller; or this Agreement is terminated under Section 6.2, whichever comes first.
Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate) (email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c ) becomes subject to an event of insolvency (including having an administrator, receiver or liquidator appointed or making an assignment for the benefit of creditors, or being unable to pay its debts as they fall due, or is otherwise deemed to be insolvent under the Corporations Act 2001 (Cth)).
Upon any expiration of the Services or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to Service and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information (except that Operative Intelligence may retain anonymised Customer Data as permitted by Section 3.6). Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
The following Sections shall survive any expiration or termination of this Agreement: 2.2 (General Restrictions), 3.1 (Ownership), 3.3 (Customer Warranties), 3.5 (Customer Data on Termination), 3.6 (Machine Learning Data), 5.1 (Fees) (with respect to any outstanding payment obligations), 6 (Term; Termination), 7.2 (Disclaimers), 8 (Limitation on Liability), 9 (Indemnification), 10 (Confidential Information), and 11 (General Terms).
Operative Intelligence warrants to Customer that: (i) it has the power and authority to execute this Agreement and perform its obligations, (ii) its performance will not conflict with obligations it has to any third party, and (iii) the Service will conform materially with all Operative Intelligence-provided Documentation. In the event of a breach of Section 7.1(iii), Customer’s sole remedy, and Operative Intelligence’s exclusive liability, shall be for Operative Intelligence to use commercially reasonable efforts to correct any such defect(s); provided that, Customer specifically notifies Operative Intelligence or Authorised Reseller in writing of the defect(s) within thirty (30) days from the date Customer first experiences the defect. Such corrections will be in accordance with Operative Intelligence’s standard practices (such as release cycles) that it provides to its other general customers. The limited warranty set forth in this Section 7.1 shall not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (b) if the error was caused by misuse, unauthorised modifications, or third-party hardware, software or services, or (c ) if the Service is provided on a no-charge or evaluation basis.
To the fullest extent allowed by law, except for the warranties in this Section 7, the Service is provided “as is”; and neither Operative Intelligence, Authorised Reseller nor their suppliers makes any other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non infringement.
Certain aspects of the Service may involve artificial intelligence (Generative AI Functions). Customer acknowledges that artificial intelligence systems are a rapidly evolving field. While Operative Intelligence is always working to improve the Service, due to the probabilistic nature of machine learning, the Service may provide inaccurate output or otherwise not always produce the intended results. As such, Customer acknowledges that no warranties are made by Operative Intelligence or Authorised Reseller with respect to (and Operative Intelligence and Authorised Reseller will have no liability with respect to) the output (or Customer’s use thereof) of Generative AI Functions of the Software.
Subject to Section 8.4, to the fullest extent allowed by law, neither party shall be liable with respect to any subject matter of this Agreement (regardless of the form of action, including negligence) for any indirect, special, incidental, reliance or consequential damages of any kind (including lost profits), even if informed of the possibility of such damages in advance.
Subject to Sections 8.3 and 8.4 and to the maximum extent permitted by law, a party’s aggregate liability for any and all claims, losses or damage arising out of or in connection with this Agreement, whether based on contract, warranty, tort (including negligence), statute or otherwise, is capped at the fees for the Service paid by Customer under this Agreement to Authorised Reseller during the Agreement Year, being each year beginning from the Start Date as set out in the Order, in which the events giving rise to the claim occurred. This cap applies in aggregate to all claims arising from all events which occur in the same Agreement Year.
Subject to Section 8.4 and to the maximum extent permitted by law, a party’s aggregate liability arising out of or in connection with this Agreement, whether based on contract, warranty, tort (including negligence), statute or otherwise, for:
8.3.1. any wrongful use or disclosure of personal information, including a breach of privacy laws; and
8.3.2. in the case of Operative Intelligence, any liability for wrongful use or disclosure of Customer Data, including any breach of Section 3.4 (Security), or under Section 10 (Confidential Information);
is capped at the greater of: (i) an amount equal to three times the fees paid by the Customer to the Authorised Reseller under this Agreement during the Agreement Year in which the events giving rise to the claim occurred; and (ii) $1,000,000. This cap applies in the aggregate to all claims arising from all events which occur in the same Agreement Year.
No provisions of this Agreement limits the liability of a party for: (a) personal injury or tangible property damage caused by negligence; (b) losses caused by fraudulent misrepresentation; (c ) breach of Section 10 (Confidential Information) except to the extent that Section 8.3.2 applies to such breach or the resulting liability (in which case the limitation in that Section will apply); (d) Customer’s liability for any wrongful use or disclosure of the Software; and (e) each party’s obligation to indemnify under Section 9.
Operative Intelligence shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting, to the extent payable to unaffiliated third parties: damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a Claim) arising out of or relating to an allegation that the Service (as provided by Operative Intelligence) infringes any intellectual property right of a third party. In the event any such Claim arises, or Operative Intelligence believes may arise, Operative Intelligence may terminate this Agreement on thirty (30) days written notice.
Customer shall defend, indemnify and hold harmless Operative Intelligence and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to (a) the use or provision of any Customer Data, including Customer’s violation of privacy or security laws or regulations in connection with Customer Data; or (b) Customer's breach of its warranties in Section 3.3.
The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such Claim; (b) sole control over the defence and settlement of such Claim; and (c ) information as may be reasonably requested by the indemnifying party. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (Receiving Party) from the disclosing party (Disclosing Party) constitute the confidential property of the Disclosing Party (Confidential Information), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any performance information relating to the Service, and all fee and pricing information, shall be deemed Confidential Information of Operative Intelligence. Except as expressly authorised herein (including each party consenting to disclosures to the Authorised Reseller, to the extent needed for them to perform their agreements with the Customer and Operative Intelligence), the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. In addition, either party may disclose information if required to be disclosed pursuant to a regulation, stock exchange listing rules, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement to; (i) a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)); or (ii) a purchaser of all or substantially all of such party’s business or assets. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, war, riot, natural disaster, pandemic, failure of power or telecommunications or data networks or services, or refusal of a licence by a government agency. If a Force Majeure Event prevents a party’s performance for more than twenty (20) days, the other party may terminate this Agreement on written notice.
Operative Intelligence has general authorisation to: (i) engage subcontractors (e.g. sub-processors such as its hosting provider) for performance of services under this Agreement if they also provide services across the Service to Operative Intelligence’s other customers; and (ii) subcontract the Services to Authorised Reseller. If another subcontractor is engaged to specifically provide services to Customer, Operative Intelligence will need Customer’s written consent. Operative Intelligence is responsible for any breach of this Agreement by a subcontractor.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
This Agreement shall be governed by the laws of the State of Victoria. Each party irrevocably agrees that the courts of Victoria shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims); provided that each party shall have the right to enforce a judgment of those courts in a jurisdiction in which the other party is incorporated or in which any assets of the other party may be situated.
Any notice or communication required or permitted under this Agreement shall be in writing (including by email). Operative Intelligence may give general notices for the Services by means of a notice on Operative Intelligence’s website or via the Software.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorised representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorised representative on behalf of the party claimed to have waived. Purchase orders (and similar documents) issued by Customer are for administrative purposes (e.g. setting forth the services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Operative Intelligence or Authorised Reseller).
This Agreement (and any schedule to this Agreement) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.