End User Licence Agreement – Terms and Conditions
1. Emprevo Application
1.1 The relationship between Emprevo (“we”, “us”, “our”) and you in connection with the Emprevo Application, and any related services is governed by:
(a) these Terms and Conditions; and
(b) where the Emprevo Application is provided to you via another application (such as Apple’s App Store, or Google’s Play Store), that platform provider’s Application End User Licence Agreement (General Conditions),(collectively, this Agreement).
1.2 To the extent there is a conflict between the Terms and Conditions and the General Conditions, the Terms and Conditions prevail to the extent of any inconsistency.
2. Grant of licence
2.1 Subject to this Agreement, by accepting your registration as a user, Emprevo grants you a revocable, personal, non-exclusive and non-transferable licence and right to use the Emprevo Application for the Intended Purpose.
3.1 This Agreement commences on the date that you download the Emprevo Application, and will remain in force until terminated by either party.
4.1 Emprevo provides, or may provide, you with the ability to accept working shifts from your employer and related services, for example to record when you are available or unavailable for a shift, through an interactive, real-time, data collection platform using the Emprevo Application (Intended Purpose):
4.2 In providing the Emprevo Application to you, Emprevo may allow you to enter User Content into your User Account for the purpose of:
(a) creating and updating your information on the Emprevo Application;
(b) communicating with your employer; and
(c) any other purpose at Emprevo’s discretion which is consistent with the Intended Purpose.
5. Conditions of use of the Emprevo Application
5.1 Unless otherwise stated in writing by Emprevo, you must only use the Emprevo Application and access the Emprevo Platform for purposes that are consistent with the Intended Purpose or as otherwise permitted in writing by Emprevo.
5.2 You must at all times comply with the terms and conditions of this Agreement.
5.3 You acknowledge and agree that:
(a) you are responsible for ensuring that no unauthorised persons access your User Account;
(b) it will be necessary for Emprevo to record in a database all data received by it via your use of the Emprevo Application and such database (including any copyright in the data) will at all times be the property of Emprevo; and
(c) Emprevo may send you emails, text messages, notifications and any other alerts in connection with your use of the Emprevo Application and access to the Emprevo Platform.
5.4 You must not directly or indirectly:
(a) copy, alter, modify, reverse engineer, translate, disassemble or de-compile any part of the Emprevo Application or the Emprevo Platform;
(b) grant any party a sub-licence to access or use the Emprevo Application or the Emprevo Platform for any purpose;
(c) distribute or resell access to the Emprevo Application or the Emprevo Platform to any person;
(d) adapt, create derivative works from, or otherwise modify any part of the Emprevo Application or the Emprevo Platform;
(e) circumvent the operation of any part of the Emprevo Application or the Emprevo Platform in any way;
(f) use the Emprevo Application or the Emprevo Platform if you are under the age of 13;
(g) use the Emprevo Application or the Emprevo Platform in any way that:
(ii) represents that Emprevo endorses, has reviewed or in any way agrees with the material communicated by you;
(iii) is misleading or deceptive;
(iv) infringes any third party’s rights, e.g. intellectual property rights;
(v) breaches any law
(vi) may affect the availability of the Emprevo Application or causes interference to the normal operation of the Emprevo Application;
(vii) is obscene, offensive, amounts to harassment or exploits another person;
(viii) is defamatory or may be defamatory; or
(ix) is otherwise reasonably considered inappropriate by Emprevo; or
(h) encourage, assist, or grant the right or ability to any other party to engage in conduct similar to that in this clause 5.4.
5.5 From time to time, Emprevo may alter or vary the Emprevo Application or the Emprevo Platform. These alterations may, among other things, have the effect of:
(a) providing a means of using enhanced or added functionality; or
(b) removing access to functionality that had previously been available.
5.6 This clause 5 survives termination of this Agreement for any reason.
6. User Accounts
6.1 Upon registering for the Emprevo Application, you will be provided with a User Account. Your User Account will consist of User Content uploaded by yourself, Emprevo and/or your employer.
6.2 You must ensure that at all times the User Content is accurate, complete and up to date.
6.3 You must keep confidential and safeguard from unauthorised use any user names and passwords required to access any facility forming part of, or made available while using, the Emprevo Application and the Emprevo Platform.
7. Intellectual Property
7.1 You acknowledge that the Emprevo Application and the Emprevo Platform are the subject of copyright and other intellectual property rights.
7.2 You must not at any time do or permit any act to be done that infringes those intellectual property rights.
7.3 This clause 7 survives termination of this Agreement for any reason.
8.1 During the term of this Agreement, Emprevo will take reasonable steps to ensure the availability of the Emprevo Application.
8.2 Emprevo may provide support in relation to the Emprevo Application and the Emprevo Platform, at its absolute discretion.
8.3 When reporting a problem or issue to Emprevo, you are responsible for providing such information and doing such things as are reasonably necessary (as requested by Emprevo) to assist Emprevo in identifying or resolving that problem or issue.
9. Acceptable Use Policy
9.1 In accessing and using the Emprevo Application, or using any related service, you will at all times adhere to Emprevo’s then current Acceptable Use Policy. Any breach of the Acceptable Use Policy by you will entitle Emprevo to elect to terminate this Agreement and your access to or use of the Emprevo Application and the Emprevo Platform, without notice to you.
9.2 Emprevo may investigate any alleged or suspected violation of this Agreement or of Emprevo’s policies (including the Acceptable Use Policy), or any third party complaints.
9.3 In the event that Emprevo determines in its sole and reasonable discretion that your actions or conduct are obscene, defamatory, unlawful, potentially infringing or otherwise violate this Agreement, the Acceptable Use Policy, or other applicable policy, Emprevo may take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, its other customers and/or third parties. Such corrective action includes, but is not limited to:
(a) issuing a warning;
(b) immediately suspending or terminating your access to or use of the Emprevo Application and the Emprevo Platform; and/or
(c) restricting or prohibiting access to any User Content that is non-compliant or otherwise violates this Agreement or applicable policy.
11.1 You acknowledge the confidentiality and the proprietary nature of Emprevo’s and other users’ and your employer’s Confidential Information and that no right, entitlement or interest in that Confidential Information is extended to or conveyed to you other than for the purposes contemplated by this Agreement. You undertake and agree that you will:
(a) keep all such Confidential Information confidential; and
(b) only use such Confidential Information for purposes consistent with the Intended Purpose.
11.2 You acknowledge that a breach of this clause 11 may cause Emprevo or other users irreparable damage for which monetary damages may not be an adequate remedy.
11.3 You acknowledge that this clause 11 may be relied upon and enforced by other users in accordance with its terms, even though those persons are not party to it.
11.4 The obligations under this clause 11 survive termination of this Agreement for any reason.
12.1 You acknowledge that:
(a) access to the Emprevo Application may not be uninterrupted, and the Emprevo Application and the Emprevo Platform may not be error-free;
(b) the performance of the Emprevo Application and the Emprevo Platform (including response times) will depend on factors outside the parties’ control including the design and performance of your information technology systems or device, and the state of the relevant telecommunications networks and their interconnections and network status;
(c) although Emprevo will implement reasonable security procedures, it cannot warrant that unauthorised access to information and data will not occur;
(d) you have relied on your own independent assessment and judgment in determining whether the Emprevo Application meets your needs and requirements; and
(e) you are solely responsible for the accuracy, quality, integrity and legality of, and the method of collection of, any data submitted via the Emprevo Application and the Emprevo Platform by you or your agents.
12.2 Nothing in this Agreement restricts, excludes or modifies any consumer rights under any statute including the Competition and Consumer Act 2010 (Cth).
12.3 Unless this Agreement provides otherwise, to the extent permitted by law, Emprevo expressly excludes all guarantees, conditions and warranties whether express or implied, statutory or otherwise.
12.4 To the extent permitted by law, in no event will Emprevo be liable to you or any other party for any indirect, punitive, special, incidental or consequential loss or damage in connection with or arising out of this Agreement or your access to or use of the Emprevo Application (including for damage to reputation or loss of profits, use, data, or other economic advantage), regardless of how it arises (including if it arises due to Emprevo’s negligence), whether for breach of this Agreement or on any other basis (including in negligence), and even if it has been previously advised of the possibility of such damage.
12.5 To the extent permitted by law, Emprevo will have no liability in respect of any claim, loss or damage arising from:
(a) an unauthorised party’s access or use of your User Account (unless that party’s access is attributable to the negligence or wilful misconduct of Emprevo);
(b) any addition to or modifications to the Emprevo Application and the Emprevo Platform made or procured by you which are not created or supplied by or on behalf of Emprevo; or
(c) your use of the Emprevo Application and the Emprevo Platform in any way other than in accordance with this Agreement or as otherwise specified by Emprevo.
12.6 Emprevo’s liability arising out of or in connection with this Agreement or your access to or use of the Emprevo Application and the Emprevo Platform (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which you or any other party contributed to the loss.
12.7 To the extent permitted by law, the cumulative liability of Emprevo for any breach of any condition or warranty in this Agreement, or any breach of a consumer guarantee by Emprevo, and your sole and exclusive remedy in relation to such breaches will be limited to, in the case of the Emprevo Application, at Emprevo’s option:
(a) supplying the Emprevo Application again; or
(b) paying the cost of having the Emprevo Application supplied again.
12.7 This clause 12 survives termination of this Agreement for any reason.
13.1 Emprevo may suspend the Emprevo Application or your access to the Emprevo Application at any time, by providing you notice if:
(a) Emprevo reasonably believes that you or your agents are in breach of this Agreement;
(b) any action taken or required to be taken in accordance with this Agreement contravenes or may contravene any law or code of conduct;
(c) you use the Emprevo Application or access or use the Emprevo Platform in a manner which is illegal, fraudulent or anti-social, as deemed by Emprevo; or
(d) such suspension would assist in achieving the Intended Purpose.
14.1 This Agreement and your User Account may be terminated by Emprevo at its sole discretion by providing notice to you.
14.2 You may terminate this Agreement by uninstalling and deleting all copies of the Emprevo Application provided to you pursuant to this Agreement.
14.3 On termination of this Agreement for any reason:
(a) you will cease to have any rights to access or use the Emprevo Application or access or use the Emprevo Platform through your User Account or otherwise; and
(b) Emprevo may, at its discretion and subject to applicable laws, either delete or retain copies of any or all data (including any personal information) that you have provided to Emprevo in connection with your User Account until it is no longer required in relation to Emprevo’s relationship with your employer.
14.4 Termination of this Agreement is without prejudice to any other rights or remedies that a party may have under this Agreement or at law, and will not affect any accrued rights or liabilities of either party.
15. Electronic transactions and verification
15.1 You acknowledge and agree that:
(a) any consent, agreement or authority that you provide via the Emprevo Application or your access to the Emprevo Platform may be made as an electronic transaction and, in those circumstances, such transaction will be binding on you; and
((b) Emprevo may send you communications through the Emprevo Application and any such communication will be taken to be received by you 1 hour after it is sent.
16. General provisions
Emprevo reserves the right to amend the terms and conditions of this Agreement from time to time. Amendments will be effective immediately upon notification on the Emprevo Website. Your continued use of the Emprevo Application following such notification will represent an agreement by you to be bound by the terms and conditions as amended.
16.2 Assignment & subcontracting
You must not transfer any right or liability under this Agreement without Emprevo’s prior written consent, except where this Agreement provides otherwise. Emprevo may subcontract, novate or assign any of its rights or obligations under this Agreement and you must provide all reasonable co-operation requested by Emprevo.
Failure, delay or neglect by a party to enforce a term of this Agreement is not to be construed as a waiver of that term or the party’s rights, or a consent to, waiver of, or excuse for any other, continuing, or subsequent breach.
16.4 Governing law
This Agreement and the licence granted under it, will be governed and construed in accordance with the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and courts which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
16.6 Entire agreement
This Agreement sets out the entire agreement between you and Emprevo in relation to the Emprevo Application and the Emprevo Platform.
Any provision of this Agreement that is expressed to survive, or by its nature survives, termination of this Agreement will continue in effect beyond termination.
17. Definitions and interpretation
In this Agreement, unless the context otherwise requires:
Acceptable Use Policy means the policy available on Emprevo’s website at www.emprevo.com as may be updated from time to time by Emprevo;
Agreement has the meaning given to that term in clause 1.1;
Emprevo means Emprevo Health Pty Ltd ACN 603 309 860;
Emprevo Application means the software and services provided by Emprevo in connection with the delivery of the Emprevo Platform mobile application accessible from mobile application marketplace;
Emprevo Platform means the proprietary rostering software owned or licenced by Emprevo, including any version upgrades and components released by Emprevo for that software;
Confidential Information means all information of or relating to Emprevo, any Related Corporation or any other user of the Emprevo Platform, and includes the source and object code for the Emprevo Platform, except to the extent that such information:
(a) is in, or comes into, the public domain other than as a result of your default;
(b) is already known to you at the date this Agreement is formed and you can prove that it was already known to you at that time; or
(c) is independently developed by you and you can prove that it was independently developed by you;
Emprevo Website means Emprevo’s website at www.emprevo.com
Intended Purpose has the meaning given to that term in clause 4.1;
Related Corporation means a “related body corporate” as defined in the Corporations Act 2001 (Cth);
User Account means the account referred to in clause 6 of this Agreement; and
User Content means data uploaded onto a User Account.