(Dated 4/7/2023)
This End-User Licence Agreement (“Agreement”) is a legal agreement between you
(including your assigns and successors) (collectively and individually, “you,”
“your”) and ACCO Brands Australia Pty Limited ACN 000 265 047 and its related
entities and affiliates (collectively and individually, “ACCO,” “we,” “our” or
“us”) governing your use of ACCO’s consumer web-based service and/or mobile
applications and/or software (“ACCO Service/Application” and as those terms are
individually defined below).
Please read this Agreement carefully. By clicking the “Get,” “Buy,” “Install,” “Download,” or similar button in the respective online store such as the Apple App Store, Google Play Store, or Microsoft Store, and/or downloading, and/or using ACCO’s consumer web-based service and/or mobile applications and/or software, you represent that you have read, understand, and agree to be bound by this Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ACCO SERVICE/APPLICATION (which includes but is not limited to the Spirax Study App and any related websites).
You represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you are eligible to use the ACCO Service/Application and have the right, power, and ability to enter into and perform under this Agreement on behalf of yourself or your business; (c) you and all transactions initiated by you will comply with all federal, state/provincial, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (d) you will not use the ACCO Service/Application, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the ACCO Service; and (e) your use of the ACCO Service/Application will be in compliance with this Agreement.
“Application” and “ACCO Application” mean all
applications and/or software running on personal computing devices, including,
but not limited to, mobile devices, tablets, laptops, desktops, or wearable
devices, including all built-in components and components provided via the
Internet or other means, such as executable files, help files, demonstration
files, example files, and other types of files; libraries, databases, samples,
and accompanying materials (such as images, photographs, animated images, audio
and video components and music), printed materials, and other components of the
Application.
“Products” and “ACCO Products”
mean all ACCO products including, but not limited to, Spirax, Mead, TruSens
, Kensington, PowerA brand products.
“Service” and “ACCO Service” mean the consumer web-based service that permits
you to, via the ACCO Application, among other features, scan, store, organise,
recognise, export, and manage text, images and data related to the ACCO
Products.
“User Content” means any data,
information, or materials uploaded or provided by you (or other persons authorised
by you to use the Service) via the Application.
Subject to the restrictions in this Agreement, ACCO grants you a personal, worldwide, revocable, non-transferable, and non-exclusive licence to use the ACCO Service and Application with ACCO Products. You are permitted to install, use, display, or run the Application or use the Service on your end-device, including but not limited to a tablet, smart phone, scanner, and PC as well as other computer systems for non-commercial purposes. The ACCO Service and Application are to be used only with ACCO Products. Use of the ACCO Service and/or Application with non-ACCO Products constitutes a breach of the terms of this Agreement.
You acknowledge that User Content uploaded or provided by you may not be stored on encrypted or otherwise secured
devices. Accordingly, you shall not collect or store any personal data in the
Application. For more details how ACCO processes personal data, please refer to
the ACCO Privacy Notice available at https://www.accobrands.com.au/privacy-policy.php
You bear sole responsibility for
the accuracy, quality, completeness, legality, reliability, usability, and
non-infringement of intellectual property and usage rights of User Content and
any other data provided by you to the Service. You shall comply with all
applicable local, public, national and international laws, contracts and
regulations, and shall bear sole responsibility for the violation thereof, in
respect of User Content, including laws, contracts, and regulations regarding
copyright, confidentiality of data, international communication, and the
transfer and dissemination of information, including without limitation
technical and personal information. You shall indemnify ACCO and hold it
harmless against all claims, legal proceedings, expenses, liabilities, and
damages, including attorney’s fees, related to, or arising from, any User
Content.
As a condition of use, you agree to the following:
We are under no obligation to enforce the Agreement on your behalf against another user. While we encourage you to let us know if you believe another user has violated the user Agreement, we reserve the right to investigate and take appropriate action at our sole discretion.
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “ACCO Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such ACCO Content, contained on the ACCO Service(s), Application, and/or Product(s) are owned, controlled, or licensed by or to ACCO, and is protected by trade dress, copyright, and trademark laws, and various other intellectual property rights. Except as expressly provided in this Agreement or otherwise permitted by law, no ACCO Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed (including by means of a digital audio transmission), encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for any purpose, without regard to whether that purpose is commercial or non-commercial in nature, without ACCO’s express prior written consent.
Through the ACCO Service, you may
be offered and/or given access to services, products, and promotions provided
by third parties and not by ACCO (“Third Party Services”). The inclusion of any
ACCO name, logo, or similar mark on or associated with Third Party Services
does not imply an approval, endorsement, or recommendation by ACCO.
You agree that you access any
such Third Party Service at your own risk, and that ACCO is not responsible for
the performance of these Third Party Services or the acts or omissions of the
entities that provide them. You agree that the use of the Third Party Service
is not governed by this Agreement or ACCO’s Privacy Policy. If you decide to
access or use a Third Party Service, you will be responsible for reviewing and
understanding the terms and conditions and privacy policy associated with the
Third Party Service.
You may terminate this Agreement
at any time by closing your account and discontinuing your use of any and all
parts of the ACCO Service or Application.
ACCO may suspend or terminate
your account or ability to use the ACCO Service, in whole or in part, at ACCO’s
sole discretion, for any or no reason, and without notice or liability of any
kind. For example, ACCO may terminate or suspend your account or ability to use
the ACCO Service if you (a) have violated the terms of this Agreement or any
other agreement you have with ACCO or ACCO’s policies, (b) pose an unacceptable
credit or fraud risk to ACCO and/or other users, and/or (c) provide any false,
incomplete, inaccurate, or misleading information or otherwise engage in
fraudulent or illegal conduct via the ACCO Service. Any such termination or
suspension could prevent you from accessing your account, the ACCO Service,
your User Content, or any other related information.
In the event of any termination,
you agree: (A) to continue to be bound by this Agreement, (B) to immediately
stop using the ACCO Service/Application, (C) that the licence provided to you
under this Agreement shall end, (D) that ACCO reserves the right (but shall
have no obligation) to delete all of your information and account data stored
on our servers, and (E) that ACCO shall not be liable to you or any third party
for termination of access to the ACCO Service, or for deletion or loss of your
information, account data or User Content.
ACCO will not be liable to you or
any third party for any compensation, reimbursement, or damages in connection
with any termination, loss of data or suspension of the ACCO Service.
You agree to release, indemnify,
defend, and hold harmless ACCO and its members, officers, managers,
subsidiaries, affiliates, any related companies, suppliers, licensors and
partners, and their respective employees, officers, agents, directors,
representatives, contractors, licensors, suppliers, and service providers from
and against any and all third-party claims asserted against any of them, and
all related costs, liabilities, legal fees, losses, damages, judgments, tax
assessments, penalties, interest, and expenses (including without limitation
reasonable attorneys’ fees) from any claim or demand made by any third party
arising out of or relating to: (a) your access to or use of the ACCO
Service/Application; (b) any actual or alleged breach by you of this Agreement;
or (c) any actual or alleged violation by you, or any third party using your
account, of the intellectual property, privacy, or other third party rights; or
(d) any loss of User Content or data whatsoever.
ACCO reserves the right, at your
expense, to assume the exclusive defence and control of any matter otherwise
subject to indemnification by you, in which event you will fully cooperate with
ACCO in asserting any available defence. You agree not to settle any matter
without the prior written consent of ACCO. ACCO will use reasonable efforts to
notify you of any such claim, action, or proceeding upon becoming aware of it.
YOU EXPRESSLY UNDERSTAND AND
AGREE THAT THE ACCO SERVICE/APPLICATION IS PROVIDED ON AN “AS IS” AND “AS
AVAILABLE” BASIS AND YOUR USE OF THE ACCO SERVICE/APPLICATION IS AT YOUR OWN
RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ACCO
SERVICE/APPLICATION IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACCO OR
THROUGH THE ACCO SERVICE/APPLICATION WILL CREATE ANY WARRANTY NOT EXPRESSLY
STATED HEREIN. WITHOUT LIMITING THE FOREGOING, ACCO, ITS PROCESSORS, ITS
PROVIDERS, ITS RELATED ENTITIES, AND ITS LICENSORS
(AND THEIR RESPECTIVE SUBSIDIARIES, RELATED ENTITIES, AFFILIATES, AGENTS,
DIRECTORS, OFFICERS, CONTRACTORS AND EMPLOYEES) DO
NOT WARRANT THAT ANY CONTENT OR INFORMATION PROVIDED THROUGH THE ACCO
SERVICE/APPLICATION IS ACCURATE, RELIABLE, OR CORRECT; THAT THE ACCO
SERVICE/APPLICATION WILL MEET YOUR REQUIREMENTS; THAT THE ACCO
SERVICE/APPLICATION WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION,
UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT
THE ACCO SERVICE/APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT ACCO IS NOT LIABLE TO YOU FOR ANY LOSS OF ANY
DATA OR USER CONTENT OR LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE
ACCO SERVICE’S/APPLICATION’S INOPERABILITY, UNAVAILABILITY, OR SECURITY
VULNERABILITIES, OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY
OF ANY CONTENT DOWNLOADED OR OTHERWISE MADE AVAILABLE THROUGH USE OF THE ACCO
SERVICE/APPLICATION. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF
DISSATISFACTION WITH THE ACCO SERVICE/APPLICATION, OR THE CONTENT OR SERVICES
MADE AVAILABLE THROUGH THE ACCO SERVICE/APPLICATION, SHALL BE YOUR TERMINATION
AND DISCONTINUATION OF ACCESS TO, OR USE OF, THE ACCO SERVICE/APPLICATION.
ACCO DOES NOT WARRANT, ENDORSE,
GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR
OFFERED BY A THIRD PARTY THROUGH THE ACCO SERVICE/APPLICATION OR ANY
HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING,
AND ACCO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN
YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
YOU UNDERSTAND AND AGREE THAT, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACCO, ITS
PROCESSORS, ITS SUPPLIERS, ITS RELATED ENTITIES, OR ITS LICENSORS (OR THEIR
RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OFFICERS, CONTRACTORS AND EMPLOYEES)
BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS,
REPUTATION, GOODWILL, USE, DATA, USER CONTENT OR ANY INTANGIBLE LOSSES, THAT
RESULT FROM THE USE OF, INABILITY TO USE, LOSS OF ANY DATA OR USER CONTENT OR
UNAVAILABILITY OF THE ACCO SERVICE/APPLICATION. UNDER NO CIRCUMSTANCES WILL
ACCO BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM AUTHORISED OR
UNAUTHORISED ACCESS OR USE OF THE ACCO SERVICE/APPLICATION, YOUR ACCO SERVICE
ACCOUNT, OR THE INFORMATION CONTAINED THEREIN, INCLUDING ANY HACKING,
TAMPERING, OR OTHER UNAUTHORISED ACCESS OR USE OF THE ACCO SERVICE/APPLICATION,
YOUR ACCO SERVICE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, ACCO, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND
THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO
LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF
CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER,
RESULTING FROM YOUR ACCESS TO OR USE OF THE ACCO SERVICE/APPLICATION; (III) ANY
UNAUTHORISED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL
INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION
TO OR FROM THE ACCO SERVICE/APPLICATION; (V) ANY BUGS, VIRUSES, TROJAN HORSES,
OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE ACCO SERVICE/APPLICATION
BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS
OR DAMAGE TO ANY DATA OR USER CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A
RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE
MADE AVAILABLE THROUGH THE ACCO SERVICE/APPLICATION; AND/OR (VII) USER CONTENT
OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO
EVENT SHALL ACCO, ITS PROCESSORS, AGENTS, SUPPLIERS, ITS RELATED ENTITIES, OR ITS
LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OFFICERS,
CONTRACTORS AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS,
LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $25.
THIS LIMITATION OF LIABILITY
SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ACCO HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL
APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable legal fees.
This Agreement is governed by the laws applicable in New South Wales Australia and you irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales.
Unless otherwise required by law,
an action or proceeding by you relating to any dispute must commence within one
(1) year after the cause of action accrues and with full details notified in
writing to ACCO, or such claim or cause of action is forever barred.
ACCO may, in our sole discretion, change or add to the terms of this Agreement at any time, and change, delete, discontinue, or impose conditions on any feature or aspect of the ACCO Service/Application. Any use of the ACCO Service/Application after publication of any such changes shall constitute your acceptance of this Agreement as modified. If you do not agree to any changes, you must stop using the ACCO Service/Application, and you can terminate your ACCO Service account. It is your obligation to ensure that you read, understand, and agree to the latest version of this Agreement.
In the event ACCO is unable to perform its obligations or current modifications of obligations under the terms of this Agreement because of war, terrorism, earthquake, hurricane, plague, epidemic, pandemic, acts of government, acts of God, national emergency, or other causes reasonably beyond its control, ACCO shall not be liable for damages to the other for any such failure to perform or otherwise from such causes.
This Agreement, and any rights and licences granted hereunder, may not be transferred, delegated, or assigned by you, but may be assigned, transferred or delegated by ACCO without restriction. This Agreement is binding on the parties and their successors and permitted assigns.
If any portion of this Agreement is held to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the remainder of the Agreement shall be enforced as written. If ACCO does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights.
This Agreement is the whole legal agreement between you and ACCO. It governs your use of the ACCO Service/Application and completely replaces any prior agreements between you and ACCO with respect to the ACCO Service/Application.
