Terms of Service
Effective date: 1 July 2011
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY EVENTCHAIN SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN EVENTCHAIN AND YOU, INCLUDING ANY Eventchain CUSTOMER, USER, OR WEBSITE VISITOR, (collectively referred to herein as "Customer").
Terms of Service
These Terms of Service form part of an agreement (this/the “Agreement”) between Eventchain Pty Ltd, an Australian limited liability company, (“Eventchain”) and Customer. This Agreement governs provision of Eventchain’s OperationalCloningTM services (the “Service”) and is effective as of the moment Customer indicates agreement at the Eventchain website, as of the moment the two parties sign a paper version, or as of the moment Customer uses any Eventchain website or element of the Service (whichever comes first).
1. The Service.
(a) Eventchain will provide the Service pursuant to this Agreement. Customer agrees that the Service is for business use and Customer hereby affirms: (i) that it will use the Service for business purposes; and (ii) that it is not an individual less than 18 years old.
(b) The Service does not include any software, consulting service, or other product or service not provided by Eventchain (collectively, "Third Party Products and Services").
(i) Third Party Products and Services include, without limitation any third party consulting services that assist Customer in utilising the Service or otherwise relate to the Service, including such services provided by third parties Eventchain referred to Customer.
(ii) THIRD PARTY PRODUCTS AND SERVICES ARE NOT PART OF THE SERVICE, AND CUSTOMER ACQUIRES THEM DIRECTLY FROM THE THIRD PARTY PROVIDER pursuant to such contract as Customer and the third party provider may execute. Eventchain IS NOT RESPONSIBLE OR LIABLE FOR THIRD PARTY PRODUCTS AND SERVICES, EVEN IF Eventchain RECOMMENDS THE THIRD PARTY PROVIDER, EVEN IF THE THIRD PARTY PRODUCTS AND SERVICES ARE RELATED TO THE SERVICE OR TO CUSTOMER’S ABILITY TO RECEIVE OR EXPLOIT THE SERVICE, AND EVEN IF Eventchain ACTS AS THE THIRD PARTY PROVIDER’S AGENT IN DELIVERING THE THIRD PARTY PRODUCT OR SERVICE, IN COLLECTING PAYMENT, OR IN OTHER WAYS. In the event that Eventchain is held responsible or liable for Third Party Products and Services, despite the provisions of this Subsection 1(b)(ii), such responsibility or liability will be subject to the disclaimers and limitations of liability in Section 7 below.
(c) So long as Customer remains in compliance with the terms of this Agreement, Eventchain grants Customer a license to reproduce and use, during the term of this Agreement, DNA templates and DNA style data (“DNA”) as Eventchain may provide through the Service. The license in the preceding sentence is contingent upon the following: Customer will not reproduce or use the DNA for any purpose other than to receive the Service, and Customer will observe all Eventchain's written instructions for use of the DNA. Customer may not sublicense the rights granted in this Subsection 1(c). Eventchain retains all title and interest in and to DNA, and Customer receives no rights other than those specifically granted in this Subsection 1(c).
2. Payment & Terms.
(a) Payment for the Service consist of a “Monthly Subscription” and “Clone Run Usage”
(i) “Monthly Subscription”: Customer pays monthly for the ability to use the Service and store the results of completed clone runs (“RUNS”). Payment is due at the start of each payment period. Customer may cancel the Monthly Subscription on 30 days’ advanced written notice. Customer will provide notice of cancellation by sending an email to firstname.lastname@example.org.
(ii) "Clone Run Usage": Customer pays for such Service as it uses during clone runs, and Eventchain may charge fees hourly or daily (or at such times as it chooses).
(b) Customer will pay Eventchain’s standard fees for the Service. Customer will make all payments in Australian dollars. Eventchain is not required to issue refunds or credits. Without limiting the generality of the foregoing: (i) fees for Monthly Subscription are non-refundable, and (ii) so are fees for Clone Run Usage.
(c) Customer will notify Eventchain of any billing dispute, providing details regarding the nature of the dispute and the amount, within 15 days of the date on the invoice in question, or waive such dispute. Any payment not received when due will, at Eventchain’s option, bear interest at a rate of 1.5% per month from the date due until paid, to compensate Eventchain for the time-value of the unpaid fees.
(d) Service fees for Clone Run Usage apply regardless of the cause of the Service usage, even if caused by hacker activity or other third party actions.
(e) Customer will maintain a valid credit card on file at all times. Eventchain may charge such card for Service fees or other fees on the first business day prior to any payment due-date. Customer will keep Eventchain updated with credit card information as necessary. If any charge attempt is denied, Eventchain may interrupt Service without advanced notice but will make reasonable efforts to provide such notice.
3. Term and Termination.
(a) This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 3.
(b) Customer may terminate this Agreement for material breach, effective on 30 days’ written notice specifying the nature of the breach, provided this Agreement will not terminate if Eventchain cures the breach before the effective date of termination. Customer may also terminate this Agreement for convenience. Notice of termination for convenience will also constitute notice of cancellation of such Monthly Subscription, and such termination will become effective on the cancellation date pursuant to Subsection 2(a)(i) above. Customer will provide notice of any termination sending an email to email@example.com. Eventchain is not required to refund any payments in the event of termination by Customer.
(c) Eventchain may terminate the Service, any portion thereof, or this Agreement for material breach or of the payment obligations set forth in Section 2, without advanced notice. Eventchain is not required to refund any fees paid after such termination. Eventchain may also terminate this Agreement for convenience at any time. Eventchain will provide 30 days’ advanced written notice of any termination for convenience. Upon termination for convenience, Eventchain will refund any amounts of the Monthly Subscription for Service not yet provided.
4. Service Levels & Remedies.
(a) Eventchain will not be liable for Service interruptions or any other Service failures. In the event of hardware failure Eventchain will make reasonable efforts to recover lost data, upon Customer’s request, but data-recovery is not guaranteed. In the event that Customer is dissatisfied with the Service, Customer’s sole remedies are those listed in this Section 4, or termination of this Agreement as authorised pursuant to Section 3 above.
(b) All Service features are provided pursuant to the provisions of Section 7 below and the other terms and conditions of this Agreement.
5. Maintenance & Security.
(a) Eventchain may interrupt Service to perform maintenance or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. Eventchain will exercise reasonable efforts to inform Customer before interrupting Service and to repair the Service promptly.
6. Private and Confidential Information.
(b) Customer will not use Confidential Information (as defined below) for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by Eventchain, Customer will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in Customer’s possession or control. Without limiting the generality of the foregoing, Customer will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of its employees or contractors who do not need to know. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided Customer gives Eventchain advanced notice reasonably sufficient to allow Eventchain to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. Customer will promptly notify Eventchain in writing of any misuse or misappropriation of Confidential Information that comes to Customer’s attention and will cooperate with Eventchain in investigating any such misappropriation and in mitigating any damages caused. Upon termination of this Agreement or upon Eventchain’s written request, Customer will return all Confidential Information to Eventchain and certify, in writing, the destruction of any copies thereof.
(i) “Confidential Information” refers to any information Eventchain provides to Customer in any form and marks “Confidential,” and any information Eventchain discloses orally and identifies as “Confidential” on or before disclosure. However, Confidential Information does not include information that: (A) is in Customer’s possession at the time of original disclosure by Eventchain; (B) is independently developed by Customer without use of or reference to information provided by Eventchain; or (C) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction.
(ii) Customer agrees that breach of the provisions of this Subsection 6(b) might cause Eventchain irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, Eventchain will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
7. Warranties, Disclaimers, & Limitations of Liability.
(a) Eventchain MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Eventchain does not warrant that the Service will be uninterrupted, error-free, or free from viruses or other harmful components. The Service is provided with no warranties regarding security, reliability, protection from attacks, data integrity, or data availability. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. No communication between Customer and Eventchain will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 7 or elsewhere in this Agreement. As used in the previous sentence, “communications” include, without limitation, marketing materials and representations of salespeople, advice provided by Eventchain or any of its representatives.
(b) Eventchain WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. Eventchain’s MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
(c) Except to the extent that applicable law specifically forbids such limitation of liability, Eventchain WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY Eventchain EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO Eventchain, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER Eventchain CUSTOMERS; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER Eventchain CUSTOMERS AND THIRD PARTY PRODUCTS AND SERVICES PROVIDERS; (vi) ACTIONS OF Eventchain EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE. THE PROVISIONS OF THIS SUBSECTION 7(c) APPLY, WITHOUT LIMITATION. With the exception of its own website, Eventchain is not responsible or liable for the content or practices of any website, including without limitation third party websites referenced in the preceding sentence.
(d) THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF Eventchain IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Eventchain’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 7 and elsewhere in this Agreement apply equally to Eventchain’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that Eventchain has set its prices and entered into this Agreement in reliance upon such limitations of liability, and that such limitations of liability form an essential basis of the bargain between Eventchain and Customer.
Customer will defend, indemnify, and hold harmless Eventchain (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer’s customers or users, or any other third party, arising out of or related to Customer’s use of, misuse of, or failure to use the Service, including without limitation: (a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights; (b) security breaches or other alleged faults in the Service, including without limitation faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer’s customers, or to other third parties); and (c) any action taken by Eventchain as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, judgments, settlements, and costs, including without limitation attorneys’ fees.
(a) This Agreement does not grant Customer a license to any software used to provide the Service or associated with the Service (collectively, “Software”), or to any other software, by implication or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, “Trademarks”) displayed on Eventchain’s website and through the Service, whether or not registered, belong to Eventchain and its licensors and suppliers. Neither this Agreement nor any Eventchain website grants a license to any Trademark, by implication or otherwise. Nothing in this Agreement transfers to Eventchain any copyright in, trademark on, or other ownership interest in any data or content of Customer. However, Eventchain may include Customer’s name in any list of customers used for marketing or other purposes.
(b) Customer is responsible for maintaining the confidentiality of its usernames and passwords, and Customer will not transfer or sell to any third party such usernames or passwords, or Customer’s access to the Service.
(c) During the term of this Agreement and for 180 days thereafter, Customer will not encourage or solicit any Eventchain employee or independent contractor to leave Eventchain’s employ, or otherwise interfere with Eventchain’s employment relationships.
(d) All written communications to Customer will be deemed delivered if sent to the contact points provided to Eventchain at the time of order, or to such other contact points as Customer provides in writing. Customer will include a valid e-mail address with such contact points. All written communications to Eventchain will be mailed to Level 6 Suite 3, 100 Walker Street, North Sydney NSW 2060, Australia, unless Eventchain notifies Customer in writing of alternate contact information.
(e) Eventchain may revise this Agreement from time to time by posting an amended version at the Eventchain website and sending Customer written notice thereof.
(f) This Agreement is to be construed in accordance with and governed by the laws New South Wales, Australia. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of Sydney, Australia.
(g) No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(h) In the event of any conflict between these Terms of Service and any other element of this Agreement, or any ordering document or statement of work, these Terms of Service will govern.
(i) Customer may not assign this Agreement or any of its rights or obligations hereunder without Eventchain’s express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(j) This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.