Metix End-User Licence Agreement (EULA) and End-User Services agreement (EUSA)

This EULA and EUSA is a legal agreement between Chironix Pty Ltd (ABN 17 621 755 048) of 37 Collingwood Street Osborne Park, Western Australia (Chironix, we, us or our) and you. It governs your use of:

• Metix application software products or downloadable software products, including any software updates (Software Products); and
• any support or maintenance services provided by us or associated materials (Software Services).

To proceed to use Metix, you must be (and you warrant and represent that you are) an employee or other authorised user (Authorised User) of the organisation which has given you access to use Metix (our Client). If you are not such an Authorised User, you have no right to use Metix and should not proceed past this point.

Please read this EULA and EUSA carefully, as it sets out the terms and conditions governing your use of Metix. By downloading, installing or accessing Metix, or clicking the “accept” button, you are entering into and are agreeing to be bound by the terms of this EULA and EUSA. If you are accepting these terms on behalf of someone else, you represent and warrant that you have full authority to bind the licensee to these terms.

If you do not agree to these terms, do not download, install access, click on an ″accept″ button, or otherwise use Metix and promptly return the unused media and documentation to us. If Metix was downloaded, destroy all copies of Metix.

This document includes:

• Part 1 – Terms of End-User Licence Agreement (EULA);
• Part 2 – Terms of End-User Service Agreement (EUSA); and
• Part 3 – General Terms applicable to both EULA and EUSA, (Agreement) and is the complete agreement replacing all prior oral or written communications between you and us regarding your use of Metix.

In this Agreement:

• Client means the person or organisation that purchased Metix from us.
• Chironix Marks means a trade mark (whether registered or unregistered), logo, company name, business name or trading name, including all associated logos, get-up and goodwill, owned, licensed and/or used by Chironix, including “Metix” and the Metix logo.
• Intellectual Property Rights means any and all intellectual property rights throughout the world, including:

1. 1. any patent, copyright (including future copyright), trade mark (whether registered or unregistered), software, design, circuit layout right, trade, business or company name or other proprietary right, or any right to register such rights; and
   2. all present and future rights in an invention, discovery, trade secret, know-how, concept, idea, data or formula and rights in information, including any serendipitous discoveries, granted by law or equity from time to time under the law of any jurisdiction.

• Licence Key means an electronic token that allows access to the Software for a specific duration of time.
• Maintenance Modification means a revision that bypasses, restricts or corrects a defect in the Software Products.
• Metix Documentation means user guides and training materials concerning Metix published on the Metix.app website
• Software Services means Subscription and Support that Chironix provides to you.
• Subscription means new-version releases or updates of Software Products that Chironix provides to you.
• Support means assistance for routine questions regarding the Metix functioning (for example “how-to” questions regarding Software Product installations or “what-to-do” questions when errors appear).
• Warranty Period means a period of one year from the date of payment for Metix.

Part 1 – TERMS OF END USER LICENCE AGREEMENT#

1.1 Access to and use of Metix#

1. 1. 1. Metix is owned by Chironix Pty Ltd and/or its licensors or suppliers, and is copyrighted and licensed, not sold. You acquire no rights or licence to Metix other than the limited right to use Metix in accordance with these terms for the duration of the Licence Term, unless terminated earlier under this EULA.
      2. Chironix grants you a non-transferable and non-exclusive right to access and use Metix remotely via the internet, and to use the Metix Documentation for the business purposes of our Client (“Permitted Purpose”) strictly in accordance with the terms of this EULA.
      3. You must comply with all applicable laws in connection with your access to and use of Metix, and access and use Metix only in accordance with access requirements (such as user identification and password requirements) notified to you from time to time by us or our Client.

1.2 Your obligations#

You must:

1. 1. only use Metix for the Permitted Purpose in accordance with these Terms and not for any other purpose;
   2. ensure that you do not share your login identifications or passwords with other persons;
   3. ensure that all devices used to access Metix have up to date anti-virus software installed and operating;
   4. keep all passwords, account names or login identifications required to access Software Products secure and confidential;
   5. comply with any applicable law and regulation relating to downloading content or applications used or supported by the Software Products.

You shall not, nor allow on your behalf, any agent or third party to:

1. 6. copy any aspect of the Software Products other than in the ordinary course of the operation or use of Metix;
   7. subject to applicable law, decompile, disassemble, or otherwise reverse engineer any aspect of Metix or determine any source code, algorithms, methods or techniques used or embodied in the Software Products;
   8. without Chironix’s prior written consent, modify, translate, adapt or otherwise create derivative works based upon, the Software Products;
   9. copy ideas, features, functions or graphics of Metix for use in another product or service;
   10. use Metix directly or indirectly for any activity or upload, store or transmit any data, information or material unlawfully or which prevents any other user from accessing, using or enjoying Metix;
   11. use Metix directly or indirectly in any way that could damage, disable, overburden, impair or compromise Metix;
   12. loan, rent, sub-licence or lease Metix;
   13. use Metix in any unlawful manner, for any unlawful purpose or in any manner inconsistent with these Terms;
   14. attempt to gain unauthorised access to the Software Products or any part thereof, or use another person’s name, registration account, log in identification or password;
   15. knowingly introduce or transmit any malicious code or other disabling feature to or from Metix;
   16. remove, disable or modify any security, anti-virus or other software on the Software Products;
   17. attempt to gain access to any data or information within or through Metix, other than the data connected to the Permitted Purpose; or
   18. remove any intellectual property ownership or management information appearing in any part of Metix.

1.3 Intellectual property#

1. 1. You agree that you will not infringe Chironix’s Intellectual Property Rights in Metix and will not modify, copy, republish, frame, distribute or communicate any part of Metix or otherwise use Metix in a way which will infringe Chironix’s Intellectual Property Rights or other rights in Metix.
   2. Nothing contained on Metix or in this Agreement shall be construed as granting any licence or right to use any of the Chironix Marks. Any unauthorised use of the Chironix Marks by you is strictly prohibited.
   3. Neither this Agreement nor any licence or sub-licence granted under this Agreement shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in Metix or the Chironix marks to you or any third party.
   4. If you become aware that you or any third party is infringing or misappropriating any Intellectual Property Rights in or relating to Metix, then you must promptly notify us in writing and cooperate with and assist us, at our expense, in the protection of such Intellectual Property Rights.

1.4 Availability and functionality#

From time to time:

1. 1. Software Products may be unavailable due to scheduled maintenance, system or software updates, upgrades or changes and operational procedures;
   2. we may change, add or delete functions, features, performance or other characteristics of Metix provided that the functionality or availability of Metix will not be materially and adversely affected; and
   3. we may deactivate your access to Metix due to systems issues.

1.5 Delivery#

Where a Purchase Order for purchase of software Licence Keys is created, we will enable access for you to the Software Products via our Client.

1.6 Compliance Verification#

The rights and obligations set forth in this section 1.6 remain in effect during the period Metix is licensed to you, and for two years thereafter.

1.6.1 Verification Process#

1. 1. You agree to create, retain, and provide to Chironix and its authorised representatives accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that your use of Metix is in compliance with this EULA.
   2. Upon reasonable notice, Chironix may verify your compliance with this EULA at all sites and for all environments in which you use (for any purpose) Metix.
   3. Such verification will be conducted in a manner that minimises disruption to you, and may be conducted on premises where Metix is used, during normal business hours. Chironix may use an independent auditor to assist with such verification, provided Chironix has a written confidentiality agreement in place with such auditor.

1.6.2 Resolution#

Chironix will notify you or its Client in writing if any such verification indicates that you have used Metix in a way that is not in compliance with the EULA. You agree to promptly pay directly to Chironix any fees or other liabilities determined as a result of such verification.

Part 2 – TERMS OF END USER SERVICES AGREEMENT#

2.1 Initial Contract Period, Renewals and Reinstatements#

1. 1. For Software Products that Chironix licenses to you, Chironix will provide Software Services provided that the Software Services are in effect for the Software Products.
   2. Software Services include an initial contract period that begins on the first day of each month or annually depending on the Client purchase decision.
   3. Software will renew automatically, depending on the client’s chosen cycle, or until cancelled.
   4. If cancelled, the client’s account will be credited with remaining balance until allocated time has elapsed.

2.2 Software Services#

2.2.1 What Software Services we provide#

1. 1. Software Services provided by Chironix in relation to Software Products include:
      1. 1. making available to you, and authorising you to upgrade to, the most current commercially-available version, release, or update, if such versions, releases, or update become available; and
         2. assistance to your designated technical support personnel, as specified in any applicable operations guide.
   2. If you report problems with the Software Product to Chironix by email at support@metix.app
   3. Chironix may provide support services by:
      1. 1. giving you access to a knowledge database;
         2. bypassing, restricting, or correcting of any defect in Metix that materially and adversely affects the use of the Software Product as described in its specifications;
         3. delivery of a bypass, restriction, or correction of a defect limited to the current or immediate prior Software Product release; or
         4. providing unspecified upgrades, updates and enhancements
   4. Chironix will respond only to questions and Software Product defect issues escalated directly from the Client’s designated technical support personnel.
   5. Chironix will use commercially reasonable efforts to respond to your service requests according to the priority level of the call, as defined by Chironix.
   6. Chironix assistance may not be available for prior versions or releases of a Software Product. Chironix assistance is limited to maintenance modifications for Software under the current EULA. Software Services are contingent upon your use of unmodified Software Products (except as authorised in writing by Chironix) operated in accordance with the Software Product’s specifications.
   7. Chironix is responsible for the supervision, direction, control, and compensation of its personnel and reserves the right to determine the assignment of its personnel. Chironix may subcontract Software Services to subcontractors selected by Chironix.

2.2.2 What Software Services we do not provide#

Software Services do not include:

1. 1. coverage of Software Product versions other than the current or immediate prior release of Metix;
   2. efforts to restore a release of Metix beyond the current or immediate prior release;
   3. efforts to restore data beyond the most recent back-up;
   4. efforts to install versions, releases, updates or maintenance modifications;
   5. operating systems and databases not provided as a Software under this Agreement;
   6. Software defects that Chironix are unable to reproduce outside of your operating environment;
   7. custom applications or application templates;
   8. services not included in Metix Services described in this Agreement (for example, premium and custom support services);
   9. assistance for:
      
      1. 1. the design and development of applications;
         2. the use of Software Products in other than its specified operating environment; or
         3. failure of Software Products caused by products for which Chironix is not responsible under this Agreement;
         4. direct assistance to officers, employees, agents or contractors other than your designated technical support personnel; or
         5. assistance to personnel other than your designated technical support personnel.

Part 3 – TERMS APPLICABLE TO BOTH EULA AND EUSA#

3.1 Data#

1. 1. You acknowledge that no data transmission over the internet can be guaranteed as totally secure. We do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information that you transmit using Metix is transmitted at your own risk. If you become aware of any problems with security of the data or the Software Products, please contact us at info@metix.app
   2. You are entirely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and rights of use in respect of any or all of your data or information, including Personal Information (as defined in the Privacy Act 1988 (Cth)) that you input in the course of using Metix (Your Data), including entering Your Data into Metix and maintaining Your Data.
   3. You remain responsible for:
      1. 1. any data and the content of any database you make available to Chironix;
         2. the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data); and
         3. the backup and recovery of any database and any stored data.

3.2 Limitations#

1. 1. Nothing in this Agreement excludes, restricts or modifies any condition, guarantee or warranty that is implied in respect of these Terms by the Competition and Consumer Act 2010 (Cth) or any other consumer protection legislation and which cannot be lawfully excluded, restricted or modified. Where such condition, guarantee or warranty is implied, Chironix’s sole liability will be limited to supplying Metix to you again or the payment of the cost of having Metix supplied again, to the extent permitted by any non-excludable provision.
   2. If, notwithstanding the terms of this Agreement, there should arise any liability on the part of Chironix as a result of any cause whatsoever (whether in contract, negligence, personal injury, breach of statutory duty or under any indemnity or otherwise), regardless of whether or not such loss was caused by or contributed to by Chironix to any degree or failure to perform any obligation or strict products liability, any liability is limited to the amount equal to the fees paid by you for the supply of Metix.
   3. In no event will Chironix be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission by you whether such damages were reasonably foreseeable or actually foreseen.
   4. In no event shall Chironix be liable to you or the Client for any losses whatsoever (whether lost future revenues, lost future profits, expenditure incurred to no benefit, or otherwise) suffered or incurred by you solely or substantially because these Terms have been terminated.
   5. All liability that is not expressly assumed in this Agreement is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action.
   6. You acknowledge and agree that the limitations and exclusions of liability set out in these limitation provisions are reasonable and have been agreed taking into account the commercial value of this Agreement to each party and the commercial standing of each party.
   7. Chironix will not be responsible, liable or held to be in breach of this Agreement for any failure to perform its obligations under these Terms or otherwise, to the extent that such failure is directly attributable to you failing to comply with you obligations under these Terms, or negligence or misconduct by you or the Client.

3.3 Indemnity#

You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your use of Metix. You will indemnify, hold harmless and (at Metix’s option) defend Metix from and against any claim, loss, cost, liability or damage, including legal fees, for which Metix becomes liable arising from or relating to:

1. 1. any breach or alleged breach by you of any term of this Agreement; or
   2. your use of Metix.

3.4 General#

1. 1. Nothing in this Agreement affects any of your statutory rights that cannot be waived or limited by contract.
   2. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
   3. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement.
   4. Neither party is responsible for failure to fulfil any obligations due to causes beyond its control.
   5. The parties agree to Metix of the laws of the State of Western Australia to govern, interpret, and enforce all of yours and Chironix’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
   6. All rights, duties, and obligations are subject to the courts of the State of Western Australia. The parties submit to the non-exclusive jurisdiction of the Courts of the State of Western Australia and any courts competent to hear appeals from those courts.