Terms and Conditions of Use

EyeSee Security Technologies Pty Ltd (“EyeSee”) – ABN: 132 384 180

Date of Modification: 02/04/2009 Version 1.0.0

These are the standard terms and conditions of supply of the EyeSee services offered on EyeSee's web site at http://www.eyeseesecurity.com ("Website").  Please read these terms and conditions carefully. It is a condition of your use of the Services that you ("you") comply with these terms and conditions. Use of EyeSee services is considered acceptance of these terms and conditions.

1. Terms and Amendment Procedure

1.1. This agreement comprises, in order of priority, highest to lowest:

1.1.1. the terms and conditions of this agreement;

1.1.2. any additional terms which apply to the products or services you acquire (which follow these Terms and Conditions);

1.1.3. our Acceptable Use Policy;

1.1.4. our operational procedures for use of the Service; and

1.2. This agreement commences on the date upon which EyeSee confirms to you by email or any other written medium that a Service has been commenced or activated ("Commencement Date"). Each unique service instance will have its own commencement date.

1.3. EyeSee may change these terms and conditions at our discretion by providing you with notice as detailed below. EyeSee may give notice of a change by posting the new version of the Agreement on our Website. The period of notice given by EyeSee depends on the nature of the change. EyeSee will use reasonable endeavours to notify you via the contact details in our database but does not take any responsibility if you have failed to keep your contact details up-to-date. If:

1.3.1. the change will benefit you, we may make the change immediately and are not required to notify you prior to the change;

1.3.2. the change is required by law, a regulatory body or for a technical reason (including for security), we will give you a reasonable period of notice not exceeding 3 days;

1.3.3. we consider that the change has a significant or detrimental impact on our customers generally, we will endeavour to provide30 days notice prior to the change, and

1.3.4. for all other changes, we will also endeavour to provide 14 days notice prior to the change.

1.4. If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.

1.5. These terms constitute the agreement in its entirety and supersede all prior agreements.

1.6. Any reference in this agreement to an EyeSee "supplier" is a reference to any third party service provider of EyeSee (a "Supplier"), if and to the extent a Supplier is supplying any part of the Services to you on behalf of EyeSee. You acknowledge and agree that EyeSee may supply the services through any EyeSee Group company and this agreement is for the benefit of that company.

 

2. Services

2.1. The Services shall be provided to you from the Commencement Date for the period specified during the order process (“Order”), or, for such extended period agreed from time to time by you and EyeSee in writing ("Service Period" or "Term"). Most services are available as one-time, or, monthly, annual or biennial renewals. At the end of the Service Period, services will continue to be extended on a monthly basis until either party notifies the other of termination.

2.2. We will assign each Customer a logon name ("username") and password which will provide you with access to the EyeSee Application (which is used to deliver the service and manage various features of your subscribed services). We will provide the Customer with features, quotas and capabilities as per the product(s) selected in the order process, at time of purchase and adjusted for upgrades/downgrades.

2.3. We must perform scheduled maintenance to our systems from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 60 minutes we will post details of the scheduled maintenance to the EyeSee Application announcements at least 24 hours in advance of the maintenance.

2.4. We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 60 minutes, we will post details of the event to the EyeSee Support Centre Announcements after the maintenance has been completed.

2.5. We backup and archive key components of the EyeSee services on a regular backup for the purposes of service restoration. In such events EyeSee will restore systems and services using a last known good backup. We do not however backup customer content (i.e. Video images, video) by default.

2.5.1. If offered, EyeSee may provide value-added services that can be added to certain products. If subscribed, EyeSee will take all reasonable measures to protect your content for use in service restoration. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer content recovered from our backups.

2.6. You agree to EyeSee's use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.

2.7. The Service is currently provided by EyeSee using supplier data centres. EyeSee will determine in its absolute discretion from time to time the data centre location from which your Service is provided. It is up to EyeSee’s discretion whether or not to disclose locations and details of data centres used to deliver services.

2.8. In contracting with EyeSee for Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by EyeSee to deliver the Service.

2.9. In contracting with EyeSee for Services, the Customer obtains no rights to the software or intellectual property used by EyeSee to deliver the Service.

 

3. Your Warranties

3.1. You warrant that:

3.1.1. if you are not the Customer, you have the power and authority to enter into this agreement on behalf of the Customer and will indemnify EyeSee for any breach of this agreement by the Customer;

3.1.2. you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either EyeSee or its Supplier concerning this agreement or any of the Services, other than any statement or representation contained in this agreement;

3.1.3. you are at least 18 years of age;

3.1.4. you will keep secure any account details and passwords used with the Service;

3.1.5. you hold and will continue to hold the copyright in the Customer Content uploaded to EyeSee systems or that you are licensed and will continue to be licensed to use the Customer Content; and

3.1.6. Your use of the Services contemplated under this Agreement complies with all relevant policies of third parties, regulations and laws and does not infringe the intellectual property or any other rights of any third party.

3.2. You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:

3.2.1. your breach of these terms;

3.2.2. your use or misuse of the Service;

3.2.3. the use or misuse of the Service by any person using your account; and,

 

4. Our General Disclaimer of Warranties

4.1. To the extent permitted by law, neither EyeSee nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of either EyeSee or the Supplier, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.

4.2. EyeSee agrees to use all reasonable efforts to provide the Services to you. However, you acknowledge to, and agree with, EyeSee, that nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of either EyeSee or its Supplier:

4.2.1. that the Services will be uninterrupted or error free;

4.2.2. that the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of EyeSee or its Supplier;

4.2.3. concerning the results or success that may be obtained from the use of the Services;

4.2.4. concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of you using the Services (including, for the avoidance of doubt, any increase in revenue, profit or goodwill in connection with any products and/or services that you may determine to offer for supply, or supply via your services, the Internet or otherwise ("Your Products and Services"));

4.2.5. as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Services, or, for the avoidance of doubt, any information provided by EyeSee or its Supplier in any advice, report or communication to you or any other party;

4.2.6. concerning any market conditions (whether favourable or not) that may be in existence at the Commencement Date will continue; and/or

4.2.7. that the provision of the Services generally, or any software utilised by EyeSee to provide the Services, will not be subject to, or result in, either errors and/or delays.

4.3. Without limiting the above, you acknowledge that EyeSee's Services may require EyeSee to use, interface with or input information into Supplier's systems and you agree that EyeSee has no liability to the extent that the Supplier is unable to provide its services to you.

5. Indemnity

5.1. You will indemnify and defend EyeSee and its Supplier and all directors, officers, employees, and agents of EyeSee and its Supplier (each an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or directly or indirectly relating to:

5.1.1. EyeSee's or its Supplier's role as your agent (and any action or inaction by EyeSee as part of that role); and/or

5.1.2. any breach of this agreement by you; and/or

5.1.3. the use of the Services by you.

5.2. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.

6. Limitation of Liability

6.1. You agree that neither EyeSee nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if EyeSee or its Supplier (as the case may be) has been advised of the possibility of such damages.

6.2. Subject to clause 6.1, you further agree that the aggregate liability of EyeSee and its Supplier for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed A$100 (Australian Dollars).

6.3. You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of EyeSee and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.

6.4. We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of EyeSee and its Supplier (and the liability of any director, officer, employee, agent, affiliate, content provider or service provider of EyeSee and its Supplier) shall be limited to the greatest extent permitted by applicable law.

 

7. Intellectual Property

7.1. You acknowledge that all right, title and interest in any and all:

7.1.1. technology, including the software, designs, architectures, process and equipment;

7.1.2. any documentation and material that is part of or provided with the Services; and

7.1.3. any know-how, trademarks or service marks of EyeSee or its Supplier, (collectively, "Our Intellectual Property") is vested in EyeSee, its Supplier and/or the licensors of EyeSee or its Supplier (as the context requires).

7.2. Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.

7.3. You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.

7.4. Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of EyeSee and/or its Supplier (as the context requires); provided, however, that nothing in this clause 7.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 7.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.

 

8. Confidential Information

8.1. You acknowledge that, in the course of the performance of this agreement, you may have access to  information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of EyeSee or its Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of EyeSee or on termination or expiration of this agreement, you shall return the Confidential Information of EyeSee or its Supplier then in your possession to EyeSee or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by EyeSee and/or its Supplier (as the context requires); or (f) is required by law to be disclosed.

 

9. Acceptable Use

9.1. As a condition of these Terms, when accessing and using the Software, you must:

9.1.1. not attempt to undermine the security or integrity of EyeSee’s computing systems or networks or, where the Software is hosted by a third party, that third party's computing systems and networks;

9.1.2. not use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other user to use the Software or Website;

9.1.3. not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Software is hosted;

9.1.4. not transmit, or input into the Software, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use); and

9.1.5. not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software or the Website except as is strictly necessary to use either of them for normal operation.

9.2. If we receive notice of, or otherwise become aware that you have failed to comply with any provision of these terms and conditions, in addition to any other rights of EyeSee under this agreement, you agree that EyeSee or its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of EyeSee, terminating this agreement. In the event that any such corrective action due to a violation of the Acceptable Use occurs, EyeSee shall not refund to you any fees paid to EyeSee prior to such corrective action.

10.  Force Majeure

10.1. Neither EyeSee nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, natural disaster, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

11. Suspension or Termination of Services

11.1. We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:

11.1.1. if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.

11.1.2. Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.

11.2. If your account has been suspended or terminated due to your breach, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require

11.2.1. Evidence that meets our satisfaction that the breach has been remedied

11.2.2. payment in full of all outstanding amounts; and

11.2.3. payment of a reactivation fee to the amount AUD$200

11.3. EyeSee reserves the right to refuse to supply services to a potential customer who has previously had its account with EyeSee terminated for breach. In this clause, "potential customer" includes:

11.3.1. (if the potential customer is a corporation) its Related Entity or Related Party (as those phrases are defined in the Corporations Law); and

11.3.2. (if the potential customer is an individual) any corporation in which the potential customer was at the relevant time an officer or shareholder, or a Related Party of a shareholder.

11.4. EyeSee may without notice to you remove, amend or alter your data upon being made aware of:

11.4.1. any claim or allegation; or

11.4.2. any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights.

11.5. We are under no obligation to provide you with a copy of the Customer Data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of Customer Data, we are entitled to charge a fee for service.

12. Customer licence

12.1. The Customer grants to EyeSee and its Supplier a license to use and reproduce all Customer Data in order to fulfil its obligations under this agreement. In this agreement "Customer Data" means all information, data, text, logos, images, audio, movie/video clips and/or content in any form that forms part of the Customer's service.

12.2 We will use any Customer Data in accordance with our Privacy Policy.

13. Miscellaneous

13.1. You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.

13.2. The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.

13.3. In the event it is necessary for EyeSee to enforce its rights under this agreement, you agree to pay all fees incurred by EyeSee (including, but not limited to, legal fees and collection agency fees)

13.4. This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of EyeSee.

13.5. A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

13.6. If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.