IMPORTANT: This End User Licence Agreement (EULA) is a legal agreement between you and Cognicity Pty Ltd ABN 79 611 834 425 (Cognicity) regarding your use of the Cognicity software programs identified in the Licence Agreement (defined below in paragraph 1) (including any accompanying documentation supplied to you) (the Software). Please read the terms of this EULA. By downloading and using the Software or pressing "ACCEPT", you agree to be bound by the terms of this EULA. If you do not agree with the terms of this EULA, you are not entitled to use the Software and you must cease using the Software.
[UPDATED: 17 MAY 2021]
- Licence Agreement: Access to the Software is granted to you as a result of the separate licence agreement (Licence Agreement) between Cognicity and (a) you; or (b) an organisation that wants you to have access to the Software (such as your employer) (Licensed Organisation). In the absence of a separate Licence Agreement, Cognicity grants you temporary access to the Software for personal use only, subject to the terms of this EULA. Cognicity reserves the right to terminate this temporary access without notice.
- Software Licence: Subject to the terms of this EULA, Cognicity grants you a revocable, non-exclusive, royalty-free and non-transferrable licence (without the right to sub-licence) to use the Software for your own personal use.
- Report Licence: Your use of the Software may result in a report being generated (Report). Subject to your use of the Software being at all times in accordance with the terms of this EULA, Cognicity grants you a perpetual, revocable, non-exclusive, royalty-free and non-transferrable licence to use the Report generated by the Software for your own personal use.
- Licence Term: This EULA commences on pressing the 'ACCEPT' button, and continues for the period specified in the Licence Agreement or until the course is completed. Cognicity reserves the right to terminate this Licence if the Licence Agreement is terminated or 1 month after pressing the “ACCEPT’ button
- Restrictions: The Software and the Report are protected by Australian copyright laws and international treaties. You must not distribute copies of the Software or the Report to third parties, without the written consent of Cognicity. You must not modify, adapt, translate into any language, reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this limitation. You must not modify, adapt, translate or commercialise the Report, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this limitation. You must comply with all applicable laws regarding use of the Software and the Report and supervise and control the use of the Software and the Report in accordance with the terms of this EULA.
- Logins: You must not provide details of your logins or passwords (Login) to any other person. You must not allow any other person to use your Login. Cognicity accepts no responsibility and will not be liable in relation to the disclosure or loss of your Login. Depending on the terms of the Licence Agreement, you may be provided with your Login by your Licensed Organisation. Alternatively as a temporary user you will be provided with a link to login to the Software and create an account. You may also have an option to elect to login anonymously. If you login using an anonymous account, you will be unable to access that same anonymous account information again.
- Support Services: Cognicity will use its best endeavours to provide the support services specified in the applicable Licence Agreement.(do we need something in this EULA for temporary users?
- Acknowledgments: You acknowledge and agree that you are solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third-party software required to use the Software. All computer functionality, operating systems, network services and hardware maintenance are your responsibility. You acknowledge and agree Cognicity will not provide any support services to you in respect of the Software unless otherwise specified in the Licence Agreement, in which case support services will be provided in accordance with paragraph 7. You acknowledge and agree Cognicity may, from time to time, notify you of minimum hardware, software and connection standards applicable to the Software.
From time to time, these third parties may be located (and therefore your personal information may be disclosed) overseas, including to the United Kingdom and United States of America.
- Data: You acknowledge that, your input or output data processed by the Software, as well as your web browser information and IP address may be collected and retained by Cognicity.
- Denial of Access: Cognicity reserves the right at any time during the term of this EULA to deny you access to the Software where you fail to keep your Logins secure, or in Cognicity's reasonable opinion, you have otherwise breached any part of this EULA.
- Termination and expiry: Without prejudice to any other rights, Cognicity may terminate this EULA immediately by notice to you if you breach this EULA and fail to remedy the breach within a reasonable time of becoming aware of it. Upon termination or expiry of this EULA, you must immediately cease to use the Software and you will be denied access to the Software. This requirement is without prejudice to any other rights and remedies that Cognicity may have in respect of a breach.
- Intellectual Property Rights: For the purposes of this EULA, the term "Intellectual Property Rights" means all copyright, patents, registered and unregistered design rights, trademarks and service marks and applications for any of the same, together with all trade secrets, know-how, rights to confidentiality and other intellectual and industrial property rights in all parts of the world. You acknowledge that this EULA does not give you ownership of any Intellectual Property Rights whatsoever in the Software or the Report. All Intellectual Property Rights in the Software and all components of it (including, but not limited to, the Report and any information, photos, text, or other material transmitted, communicated or otherwise provided by Cognicity) are owned or licensed by Cognicity. The Software or the Report may display trademarks, logos, service names, trade names of Cognicity or third parties which may be registered or otherwise protected by law. You are not permitted to use any trademarks, logos, service names and trade names appearing in the Software or the Report.
- Confidentiality: You acknowledge that the ideas and expressions contained in the Software and the Report and any modifications or particulars of them that may be provided to you by Cognicity are confidential (except to the extent that they have entered the public domain other than through a breach of this EULA by you or others?). You undertake not to disclose such confidential information to any person other than necessary to enable the Software and the Report to be used in accordance with and for the purposes of this EULA. You undertake to ensure that such persons maintain that confidentiality. You undertake not to remove, delete or obscure any copyright notices or confidentiality notices on or in the Software or the Report.
- No Warranty: Cognicity does not and cannot warrant that the Software will operate entirely error or fault free.
Cognicity supplies the Software as a service, and does not and cannot warrant that the Software will operate continuously. Cognicity will not be liable in the event that the Software is unavailable to you due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunication services. Cognicity takes no responsibility for errors or failures caused by network connections, computer systems, software or any acts or omissions of a third party that acts as a service provider or carrier to offer access to the Software to you.
Cognicity provides the Software 'as is and with all faults', and subject to your rights under the Australian Consumer Law and this paragraph 16, disclaims all other warranties and conditions, whether express, implied or statutory, including, but not limited to any (if any) implied warranties, duties or conditions of satisfactory quality, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of reasonable care and skill, all with regard to the Software and Report and associated documentation, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software or the Report. You acknowledge that a failure of any part or the whole of the Software or the Report to suit your requirements will not give rise to any right or claim by you against Cognicity.
Nothing in this EULA excludes, restricts or modifies any consumer guarantee, right or remedy conferred on a party by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement. To the fullest extent permitted by law, the liability of Cognicity for a breach of a non-excludable guarantee referred to in this paragraph 16 is limited, at the Cognicity's option, to: (a) in the case of goods, any one or more of the following: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the costs of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; or (b) in the case of services: the supplying of the services again; or the payment of the cost of having the services supplied again.
- Medical disclaimer: The Software includes a measure of unconscious knowledge through a Go/No-Go Association Task, a type of implicit association test, and is designed for educational purposes only. The information contained in the Report or disclosed through use of the Software is not a substitute or replacement for professional medical or counselling advice, diagnosis or treatment, and you should not rely on this information as such. You should always consult a health-care professional if you have any concerns or questions about your health, and you should not disregard, avoid or delay obtaining medical or health-related advice from your health-care professional because of your Report results or anything you may read or observe while using the Software.
Nothing contained in the Software or the Report is intended to be, and must not be taken to be, the practice of medical or counselling care. Any reliance or use of any information provided by or contained in the Report or made available through use of the Software is solely at your own risk.
Cognicity does not guarantee that any factual information disclosed through use of the Software or contained in the Report will always include the latest or most recent findings or developments.
Your use of the Software and the generation of the Report does not in any way create between you and Cognicity, a confidential or privileged relationship, a relationship of practitioner and patient, or any other relationship that would give rise to any duties on the part of Cognicity.
- Limitation of liability: You confirm that you have not relied on any representation, description, illustration or specification which is not expressly stated in this EULA. Unless this EULA expressly provides otherwise, to the maximum extent permitted by law, all express and implied conditions, warranties or liabilities (including liability as to negligence) regarding the condition, accuracy, suitability, quality or title to the Software are negated and excluded. Cognicity gives no condition, warranty, undertaking or representation in relation to the condition, accuracy, suitability, quality of or title to the Software or the Report (including any data contained in or supplied in relation to it or reports generated or produced by or with the aid of the Software).
Cognicity will not be liable for any indirect, incidental, consequential loss or damage whatsoever, in each case, arising out of the use of or in ability to use the Software, even if Cognicity has been advised of the possibility of such loss or damage. Cognicity will not be liable for any inability to access, loss of or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption or the like (whether such loss or damage is direct or indirect).
Cognicity's liability to you for any proven loss or damage suffered by you for any other proven loss and damage is limited to the fees paid by you or the Licensed Organisation (as applicable) to Cognicity under the Licence Agreement for the use of the Software that is subject to the current claim.
- Indemnity: Unless as otherwise stated within the Licence Agreement that pertains to your use of this Software, as agreed between Cognicity and you and/or the Licensed Organisation, you will fully indemnify and keep indemnified Cognicity and any Cognicity employees in respect of all loss, damage, liabilities, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, actions claims, demands and proceedings howsoever arising, whether at common law or statute, in connection with any of the following: (a) any breach of this EULA by you; (b) your use of the Software or Report other than in accordance with this Agreement; and (c) your communications with Cognicity. You agree to give full cooperation and provide Cognicity with reasonable assistance in conducting the defence of such a claim.
- General: The law applicable to this EULA and to disputes arising out of this EULA is the law of the State of Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia, and any courts of appeal from them in respect of all matters arising out of or relating to this EULA, its performance or subject matter.
Should any paragraph or part thereof of this EULA be found to be void, unenforceable or invalid, then it is severed from this EULA, leaving the remainder in full force and effect, provided that the severance has not altered the basic nature of this EULA.
You may not rely on the words or conduct of Cognicity as a waiver of any right unless the waiver is in writing.