This software Tool is one output of the FWPA
research project FWPA PNC326-1314 “Deployment and integration of
cost-effective, high spatial resolution, remotely sensed data for the
Australian forestry industry”.
Documentation is available in the FWPA research project report
“Photogrammetry for Forest Inventory: Planning Guidelines” available from the
FWPA website. Programming
by Alexander Pishchugin, 2017.
End User Licence Agreement
This end user licence
agreement (referred to throughout this document as the “EULA”) is between you and the University of Tasmania (defined in
clause 1.1 as we, us). Your use
of the Tool is governed by the EULA. It
is a legal agreement between you and us.
In consideration for Registering
as a user of the Tool you confirm acceptance of the EULA. The date you Register
will be the effective date of the EULA (defined in clause 1.1 as the “Effective Date”). You may not make any use of the Tool unless
you have accepted the EULA. At a
minimum, your agreement with us will always include the EULA.
1
DEFINITIONS
In the EULA, unless specified otherwise:
Tool means the aerial imagery costing
tools or platforms provided by us from time to time via various deployment
methods. The Tool includes, but is not
limited to any services that are arranged by you direct with us; and any
associated components, but excluding Third Party Tools.
Automated
Access means use
of a process, script, webcrawler, software or other
methodology that: (a) permits a user that is not a human user to access the
Tool as a user; or (b) monitors any activity in connection with the Tool; and
(c) regardless of whether we are aware of the nature of such access.
Confidential
Information has the
meaning set out in clause 7.1 (Definition of Confidential Information).
Consequential Loss means any consequential or indirect loss suffered
or incurred under or in connection with this EULA (whether arising in contract
or tort (including negligence), under an indemnity or otherwise) including but
not limited to loss of anticipated savings, loss of profits, loss of data
(including the costs of reconstruction of a loss of data), costs of internal
resources or third parties utilized to address any breach by a party,
additional amounts paid for alternative or replacement items, the costs of reworking
defective work, and the costs of remedial measures such as engaging extra staff
or purchasing additional equipment to address problems.
Effective Date means the date you Register
for the Tool.
Harmful Code means viruses, worms, time bombs, Trojan
horses and other harmful software, files, scripts, agents or programs.
Intellectual
Property Rights
means
intellectual property rights conferred on a party or recognised at Law in any
territory throughout the world including any rights associated with copyright,
trademark, business name, patent, innovation concept, semiconductor, formula,
trade secret, method, circuit layout, invention and any other results of
intellectual activity in any field of industry or endeavour, and includes (a)
any right to require that Confidential Information be kept confidential, and
(b) any right to use an Intellectual Property Right owned by a third party
where the terms of that right of use or licence permit a use of that
Intellectual Property Right as contemplated under the EULA.
Law means, with reference to any
applicable jurisdiction, any statute, regulation, bylaw or a provision of a
statute, regulation, or bylaw and includes, without limitation, any statutory
rule, or ruling by a statutory body.
Open Source
Software Component means any software which may have been utilised
within or in conjunction with the Tool and which is otherwise freely available
to the general public under licence terms which are
different to this document.
Register means the act of registration as a user of the Tool (including by
means of Automated Access - whether in breach of this EULA or otherwise) and
includes the act of registration on behalf of that person as a user, or the
web-based confirmation
of an act of acceptance of an invitation by any person to become a user. Without limiting clause 2.3(d)
(Interpretation – General), in this EULA,
Registered, Registering and
other similar grammatical variances of this word have the corresponding meaning
of this concept in the context they are used.
Third Party Tools means software tools, datasets software
products that are: (a) provided by third parties; (b) interoperate with the
Tool; and (c) may be either separate or con-joined with the Tool, whether or
not they are identified to you by us as Tools that are provided by third
parties.
we, us means
the University of Tasmania.
you means any party who is Registered. Without prejudice to the requirements of our
Registration policies, when: (a) there is more than one party involved in that
instance of Registration, those parties are jointly and severally liable to us;
(b) you are an individual, the expression includes your personal
representatives, employees and agents, and if you are an employee, the
expression includes your employer; (c) the Registered party is a corporation,
the expression includes the employees, agents and successors of the
corporation; (d) the Registered party is a partnership, the expression includes
the partnership as it is constituted
at the date of its Registration and each of its members and also the successors
of the partnership whether comprising the same of a different name and each of
the members of the partnership or its successors as it may be constituted from
time to time; and (e) the Registered party is or becomes a trustee (whether or
not that fact is disclosed to the us) the expression includes the party in its
personal capacity as well as its capacity as a trustee. Without limiting clause 2.3(d)
(Interpretation – General), in this EULA, your,
yours and other grammatical
variances of these terms in the EULA have the corresponding meaning of this
concept in the context they are used.
your Data means all electronic data or information
submitted by you making use of the Tool, whether that data or information is
submitted by you or data that is intended by you to be processed, stored
(temporarily or otherwise) or syndicated using the Tool.
2
INTERPRETATION
2.2
References – Statutes and currency. In
this document a reference to a Law includes: (a) that Law as amended or
re-enacted from time to time; (b) a statute, regulation or provision enacted in
replacement of that Law; and (c) another regulation or other statutory
instrument made or issued under that Law.
A reference to money is to Australian Dollars, unless otherwise stated.
2.3
Interpretation – General. In
this document: (a) “including” and similar expressions are not words of limitation;
(b) a reference to a clause or schedule is a reference to a clause of or a
schedule to the EULA; (c) a reference to an agreement or document (including,
without limitation, a reference to the EULA) is to the agreement or document as
amended, novated or replaced; (d) where a word or
expression is given a particular meaning, other parts of speech and grammatical
forms of that word or expression have a corresponding meaning; (e) headings are
for convenience only and do not form part of this document or affect its
interpretation; (f) a provision of the EULA must not be construed to the
disadvantage of a party merely because that party was responsible for the
preparation of the EULA; and (g) all references to time are to Australian
Eastern Daylight Time.
3
SERVICES
3.1
Provision of the Tool. We
will make the Tool available to you under the terms of the EULA. You acknowledge that the terms of this EULA
do not constitute a sale of any aspect of the Tool to you. You agree that your use of the Tool is not
contingent on the delivery of any future functionality or features, or
dependent on any oral or written public comments made by us regarding future
functionality or features. You may
access the Tool on any device that has the relevant capabilities and any minimum
system requirements that have been specified by us from time to time. However, you acknowledge that we do not
warrant that any of the Tool will be available by way
of access from any particular device.
3.2
Future Access Subscriptions.
Initial access to the Tool is available to you free of charge. However, you acknowledge that we reserve the
right to change this in the future. In
some instances, the Tool (or various components of the Tool) could be made
available to you for purchase as a subscription, or on a fixed price purchase
arrangement.
3.3
Licence. We
grant to you a personal, non-assignable, and non-exclusive license to use the
Tool in accordance with the EULA for the duration of the EULA. This license is granted for the sole purpose
of enabling you to enjoy the features of the Tool in the manner contemplated by
the EULA and is not capable of sublicense without our prior written consent.
3.4
Open Source Software Components. The
restrictions which this document places on the use of the Tool do not in any
way limit your access to, use of or obligations in respect of any Open Source
Software Components.
3.5
Term. The term of this EULA will continue until it is terminated in one
of the ways provided for in clause 9 (Termination).
4
USE OF THE
SERVICES
4.1
Your
Responsibilities. You are entirely responsible for: (a) your
access to the Tool; (b) your use of the Tool; (c) your compliance with the
EULA; (d) the appropriateness, accuracy, quality, and legal integrity of your
Data; and (e) the means by which you acquired your Data. You acknowledge that you may be required to
have and maintain an internet or data connection in order to access the
Tool.
4.2
Prevention of Misuse. You
must: (a) use commercially reasonable efforts to prevent unauthorized access to
or use of the Tool, and notify us promptly of any such unauthorized access or
use; (b) not seek to circumvent the our methods intended to control access to
the Tool; (c) not operate or develop patches, software or applied programming
interfaces that are intended to augment or alter the Tool in a manner that is
not intended or not authorized by us; and (d) use the Tool only in accordance
with applicable Laws.
4.3
Use of the Tool. You must not: (a) make the Tool available to anyone else; (b)
sell, resell, rent or lease access to the Tool; (c) use the Tool to store or
transmit infringing, libelous, or otherwise unlawful
or tortious material, or to store or transmit material in violation of third
party privacy rights; (d) use the Tool to store or transmit Harmful Code; (e)
interfere with or disrupt the integrity or performance of the Tool or any Third
Party Tools; or (f) attempt to gain unauthorized access to the Tool or our
related systems or networks. You may not access the Tool to monitor their
availability, performance or functionality unless the reason for your doing so
is to assess the Tool for your own reference in circumstances where the details
of your assessment are not to be published or provided to a third party.
4.4
Usage Limitations. The Tool may be subject to usage limitations, such as, for
example, limits: (a) on storage space; and (b) on the number of calls you are
permitted to make against our Tool programming interfaces. You must comply with any usage limitations
imposed by us.
4.5
Automated Access. All Automated Access is also subject to the EULA. No automated software or process may legally
access the Tool until the person who is responsible for the Automated Access
has accepted the EULA. As such, any
attempt to obtain Automated Access will be bound by the EULA. If you are responsible for any Automated
Access, you must also comply with any directives we may make in respect of the
Tool using a Robots Exclusion Protocol, robots.txt file, Robots Exclusion Standard
or any other directive concerning Automated Access prepared by us from time to
time.
4.6
Access Information. You must keep your passwords and any confidential user
identification that you use to access the Tool secure. You are solely responsible to us for all
activities that occur in respect of your user account for the Tool, and if you
become aware of unauthorized use of your user account for the Tool, you agree
that you will notify us immediately.
4.7
Software Versions and Tool. You acknowledge that: (a) there are multiple instances of software
supporting and underpinning the Tool; (b) we will make that software available
to you from time to time to assist your use of the Tool; (c) that we will
update that software from time to time.
As a condition of your use of the Tool, you must use the latest versions
of any of our software made available to you for that use. You also consent to us updating the Tool
automatically without notifying you.
4.8
Restricted Purposes. You
must not use the Tool for any purpose that is restricted by us in our sole
discretion. This includes but is not
limited to purposes that: (a) promote harmful activities or substances in
breach of any Law; (b) infringe a third party’s Intellectual Property Rights,
or violate a third party’s rights of publicity or privacy; and (c) are
fraudulent, false, misleading or deceptive.
5
THIRD PARTY
ArrangementS
5.1
Acquisition of Third Party Products and
Services. You acknowledge that: (a) if you utilise any other products or
services produced by other parties, including but not limited to Third Party
Tools, including implementation, customization and other consulting services,
and any exchange of data between you and any third party provider, is solely
between you and the applicable third party provider; and (b) we do not warrant
or support any Third Party Tools or any other product or service that are not a
part of the Tool, whether or not they are designated as “certified” or
otherwise.
5.2
Third Party Tools and your Data. If you install or enable Third Party Tools for use with the Tool,
you acknowledge that we may allow providers of those Third Party Tools to
access your Data as required for the interoperation of those Third Party Tools
with the Tool. We are not responsible
for any disclosure, modification or deletion of your Data resulting from this
type of access by Third Party Tool providers.
5.3
Third Party Suppliers. You
acknowledge that in order for us to provide the Tool to users, we source data
from other providers (Other Providers).
This means that the Other Providers are beneficiaries to your
obligations under this EULA, and how you use the Tool may affect the Other
Providers and our arrangements with them.
By Registering, you agree that (a) the Other Providers may use this EULA
to enforce your obligations and to assert their rights as beneficiaries; and
(b) that we may supply information about your obligations and use of the Tool
to the Other Providers for the sole purpose of enabling them to enforce those
obligations where appropriate.
6
PROPRIETARY
RIGHTS
6.1
Reservation of Rights. Subject to the rights
granted to you in the EULA, we reserve all other rights, title and interest in
and to the Tool, including all Intellectual Property Rights in the Tool. You acknowledge no Intellectual Property
Rights are granted to you in the EULA other than the usage rights for the Tool
that are expressly described in the EULA.
6.2
Restrictions. You must not: (a) permit any third party to
access the Tool except as permitted in the EULA; (b) copy, modify, create
derivate works of, reverse engineer, decompile or otherwise attempt to extract
the source code of the software in respect of the Tool; (c) copy, frame or
mirror any part or content of the Tool, other than copying or framing for your
own personal reference; (d) reverse engineer any aspect of the Tool; (e) access
the Tool in order to build a competitive product or service; (f) copy any
features, functions or graphics of the Tool; or (g) act in a manner that is
otherwise inconsistent with our Intellectual Property Rights.
6.3
Ownership of your Data. Subject to the licenses you have granted to
us in respect of your Data in the EULA, we acknowledge that you own all rights,
title, and interest in and to all of your Data.
6.4
Other Intellectual Property
Rights. During your use of the Tool, you must not utilize
content in a way that infringes the Intellectual Property Rights of third
parties. You must obtain the consent of
the owner of the relevant Intellectual Property Rights in respect of the
content you intend to use. You
acknowledge that we are not liable to you or to any third party for your use of
content in breach of this clause 6.4.
6.5
Information Rights and Publicity. Subject to the terms of our privacy policy (located at www.utas.edu.au/privacy, or any other reference point that we may provide to you
from time to time), we and our related parties may retain and use, information
collected about you during the course of your use of the Tool. We will not share information in respect of
your activities with any third parties unless we: (a) have your consent; (b)
are permitted to do so under relevant Laws relating to privacy; or (c) provide
such information in certain limited circumstances to third parties to carry out
tasks on our behalf (e.g., invoicing or data storage) with strict restrictions
that prevent the data from being used or shared except as directed by us. When this is done, we must ensure it is
subject to agreements that oblige those parties to process such information
only on our instructions and in compliance with the EULA and appropriate
confidentiality and security measures.
By registering as a user of the Tool, you also consent to the transfer
of your personal information to a country outside of the country you reside in,
provided that the transfer is conducted in accordance with applicable Laws.
6.6
Trade Marks. You
acknowledge that you may not use our trade marks,
logos, domain names or brands to promote you or your services (or in
juxtaposition to them) except: (a) in any instance where we have otherwise
authorized you to do so; or (b) any instance where our trade
marks, logos, domain names or brands are to be used in association with
functions that permit the Tool to interoperate with other services.
6.7
Suggestions. You
grant to us a royalty-free, worldwide, transferable, sub-licensable,
irrevocable and perpetual license to use or incorporate into the Tool any
suggestions, enhancement requests, recommendations or other feedback provided
by you relating to the operation of the Tool.
7
CONFIDENTIALITY
7.1
Definition of Confidential Information. In this clause 7, Confidential Information means all information disclosed by a
party (Disclosing Party) to the other party (Receiving Party),
whether orally or in writing, that is designated as confidential or that
reasonably should be understood to be confidential given the nature of the
information and the circumstances of disclosure. Your Confidential Information includes your
personal information. Our Confidential
Information includes that information concerning aspects of the Tool not
ordinarily available to the public.
Confidential Information also includes the terms and conditions of the
EULA, as well as business and marketing plans, technology and technical
information, product plans and designs, and business processes disclosed by any
party. However, Confidential
Information does not include any information that: (a) is or becomes generally
known to the public without breach of any obligation owed to the Disclosing
Party; (b) was known to the Receiving Party prior to its disclosure by the
Disclosing Party without breach of any obligation owed to the Disclosing Party;
(c) is received from a third party without breach of any obligation owed to the
Disclosing Party; or (d) was independently developed by the Receiving Party.
7.2
Protection of Confidential Information. Unless authorized by the Disclosing Party in writing; (a) the
Receiving Party must not disclose or use any Confidential Information of the
Disclosing Party for any purpose outside the scope of the EULA; and (b) the
Receiving Party must limit access to Confidential Information of the Disclosing
Party to those of its employees, contractors and agents who need the access for
purposes that are consistent with the EULA and who have signed confidentiality
agreements satisfactory to both parties.
7.3
Protection of your personal information. We
will maintain appropriate administrative, physical, and technical safeguards
for protection of the security, confidentiality, and integrity of your personal
information in accordance with our privacy policies as modified by us from time
to time. We will not: (a) modify your
personal information; (b) disclose your personal information, except where this
EULA permits or requires that disclosure; or (c) access your personal
information except to provide the Tool or prevent or address service or
technical problems, or at your request in connection with customer support
matters.
7.4
Compelled Disclosure. The
Receiving Party may disclose Confidential Information of the Disclosing Party
if it is compelled by Law to make the disclosure, provided the Receiving Party
gives the Disclosing Party prior notice of the scope of the compelled
disclosure (to the extent legally permitted) and reasonable assistance, at the
Disclosing Party's cost, if the Disclosing Party wishes to contest the
disclosure. If the Receiving Party is
compelled by Law to disclose the Disclosing Party’s Confidential Information as
part of a civil proceeding to which the Disclosing Party is a party, and the
Disclosing Party is not contesting the disclosure, the Disclosing Party will
reimburse the Receiving Party for its reasonable cost of compiling and
providing secure access to such Confidential Information.
8
Acknowledgements,
WARRANTIES AND DISCLAIMERS
8.1
Acknowledgement. You
acknowledge that (a) the Tool is intended to assist providing users with
information only; and (b) that we do not accept liability for any particular
outcomes affecting you as a result of the information provided through the Tool.
8.2
Mutual Warranties. Each party represents and warrants that: (a) it has the legal
power and capacity to enter into the EULA; and (b) it will not transmit to the
other party any Harmful Code.
8.3
Disclaimer. Except as required by any Law or as set out in the EULA, neither party makes any other warranties of any kind, and
each party specifically disclaims all implied warranties.
9
TERMINATION
9.1
Termination by us. We
may terminate the EULA at any time in writing if: (a) you have breached any
provision of the EULA; (b) you have acted in a way that indicates you does not
intend to comply with a provision of the EULA; (c) we are required to terminate
the EULA by Law, or the operation of the Tool becomes unlawful; (d) we
determine that the provision of the Tool is no longer profitable or viable.
9.2
Termination by you. You
may terminate the EULA without notice to us simply by: (a) deregistering as a
user of the Tool; and (b) ceasing to use all aspects of the Tool (including
those that interoperate with Third Party Tools). If you terminate in this way, you will be
required to pay any subscription fee payable to us up until the end of the
nearest payment period that is applicable to your use of the Tool. If you resume use of the Tool in any way,
the EULA will apply to that resumed use, whether you are Registered or not.
9.3
Commercial Effect of Termination. Any
termination by you does not secure any right to a refund or credit.
9.4
Survival of Terms. Any
termination by either party will not affect any rights, obligations liabilities
or licenses that are either expressed in the EULA to be continuous or are
intended to continue indefinitely by implication.
10
GENERAL
PROVISIONS
10.1
Export
Compliance. You must comply with the export Laws and
regulations of any relevant jurisdictions in using the Tool. In particular: (a) you warrant that you are
not named on any government list of persons or entities prohibited from
receiving exports; and (b) you must not access or use the Tool in violation of
any export embargo, prohibition or restriction.
10.2
Relationship of the Parties. The parties are independent contractors. This EULA does
not create a partnership, franchise, joint venture, agency, fiduciary
or employment relationship between the parties.
10.3
Third Party Beneficiaries. You
acknowledge that: (a) we have entered into licensing arrangements to enable the
provision of the Tool; and (b) the licensors of the enabling data or
technologies could be third party beneficiaries to your obligations under the
EULA.
10.4
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under
the EULA constitutes a waiver of that right.
Other than as expressly stated in the EULA, the remedies set out in the
EULA are in addition to, and not exclusive of, any other remedies of a party
under any Law.
10.5
Severability. If any provision of the EULA is held by a court of competent
jurisdiction to be contrary to any Law, the provision must be modified by the
court and interpreted so as best to accomplish the objectives of the original
provision to the fullest extent permitted by Law, and the remaining provisions
of the EULA will remain in effect.
10.6
Assignment. You
cannot assign your rights or obligations under the EULA without our prior
written consent. We can novate or assign our rights or obligations under the EULA
without restriction.
10.7
Liability.
Subject to any Law applying to the EULA that expressly prevents this
provision, our aggregate liability from any one claim by you (whether the claim
arises under this EULA, or pursuant to any action in tort, negligence or
otherwise) will not exceed the larger of: (a) the amount paid or payable by you
to us for the Tool; or (b) the cost of
re-supplying the Tool to you. Subject
to applicable Law, in no event will we be liable to you for Consequential
Losses incurred as a result of a breach of this EULA.
10.8
Amendments. We
may amend the EULA from time to time by either notifying you using the Tool or
providing details of the amendments on our website. We will act reasonably in making any
amendments.
10.9
Governing Law and Disputes. The
EULA is governed by the Laws of Tasmania and the Commonwealth of Australia and
disputes must be resolved in the non-exclusive courts of that
jurisdiction. You agree that you will
not be involved in an action as a class member in a class action and that all
disputes must be pursued in your own name only. Each of the parties waive
respective rights to seek or be involved in any class action under this EULA or
concerning any aspect of the Tool.
10.10
Entire Agreement. The
EULA constitutes the entire agreement between the parties and supersedes all
prior understandings and agreements concerning its subject matter.