Dashflow™ Licensed Application
INTELLECT AUTOMATION INTERNATIONAL PTY LIMITED
DASHFLOW™ END USER LICENSE AGREEMENT (“EULA”)
Intellect Automation International Pty Limited (“IAI”, “the Company”, “we”, “us”, “our”, “Licensor”): The legal form of the business that has developed and is providing the Dashflow™ Software and associated Applications via Apple’s distribution service.
You, your: The reader who is authorised to act on behalf of his/her company (“Firm”, “the Customer”) and is deploying the Company’s Software to end users under the terms of this EULA.
Intellectual Property (“IP”) Rights: IP rights means all intellectual property rights wherever in the world, whether registered or unregistered, present and future including any application or right of application for such rights. IP includes such things as copyright, database rights, confidential information, trade secrets, know-how, business names, trade names, trade-marks, patents, service marks, and design rights.
Licensed Application (“Application”, “Software”, “Dashflow™”): A Licensed Application is the machine executable version only of one or more of the Company’s Dashflow-related Applications and includes all components, updates, patches, adjustments, fixes, improvements, enhancements provided to you via a download, automatically without additional consent or action on your behalf or otherwise, and any and all complementary documentation, files and materials that we may provide, but at all times excludes the source code, software design data, and other human readable form of the Application.
Apple Incorporated (“Apple”, “Apple Inc”): An American multinational technology company headquartered in Cupertino, California responsible for the iOS Platform used by the Software. Apple may refer to and include any subsidiaries, products, services as well as products or services provided by any majority-owned affiliates of Apple.
Device: An Apple mobile or computer including but not limited to iPhones and iPads that is without fault and operates as intended by Apple and under your supervision at all times. It holds your existing contacts, emails and other confidential data and provides a range of services via a range of third-party apps.
Employee: The potential “end user” of Licensed Applications who is any person working for your Firm whether in a temporary or permanent capacity, whether fully or part-time engaged, and whether a formally-defined employee or in a contracted, agency, representative informally-linked or other arms-length mode.
Subscription refers to the fee or mode of payment for use of an installed Licensed Application. The Company offers Subscriptions for varying periods prior to their optional or automatic renewal.
This EULA governs the use of Software made available by or on behalf of the Company.
- Grant of a License
Any Licensed Application that you have obtained or purchased is licensed to you only, not sold to you. You have acquired a right only to use the Licensed Application under the terms of this License and no other right. The Licensor reserves all rights not expressly granted to you and the right to vary the terms of this license on giving notice. Subject to your agreement and compliance with the terms and conditions of this EULA, the Licensor grants to you a limited, personal, non-exclusive, non-transferable and revocable License (without the right to sub-License) to install, use, access, display and run the Licensed Application on one of the Devices which you own at the time or are under your control solely for your internal business use.
For the avoidance of doubt, the foregoing License may not be shared or used concurrently on multiple Devices without the purchase from the Company via Apple’s App Store or VPP Store of additional Licenses for each such Device accessing, displaying running and/or using the Licensed Application, unless sharing is explicitly permitted in writing.
For purposes of the foregoing License grant, the continued use of the Licensed Application after the expiration of any applicable “trial period” designated by the Company without the payment of the applicable fee is outside the scope of the foregoing License and a violation of this EULA and international copyright laws. Continued use of the Application after expiry of any “trial period” or the period for which the applicable Subscription fee has been paid is a breach of contract, is a use without license or approval and is an infringement of copyright.
This License does not allow you to use the Licensed Application on any allowable Device that you do not own or control, and you may not copy, share, distribute or make the Licensed Application available in such a way that it could be used by multiple Devices at the same time.
You may not rent, lease, lend, sell, transfer, redistribute or sublicense the Licensed Application nor permit any other person to use the Licensed Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application. Any attempt to do so is a violation of the rights of the Company and its licensors if applicable. If you breach this restriction, you may be subject to prosecution and damages.
The terms of the License will govern any upgrades provided by the Company that replace and/or supplement the original Software product, unless such upgrade is accompanied by a separate License in which case the terms of that License will govern.
- Customers & End Users
The Company elects to deliver software and related software product or License information to customers and their users by electronic transmission or download via Apple’s VPP Store, App Store or other means that Apple may permit or provide.
Your Firm must be registered as a business customer with Apple for use of the Volume Purchase Program. You are authorized to use the VPP Store to obtain multiple Licenses of the Software and manage the distribution of a non-transferable single License to each end user in possession of a suitable Device and who is an Employee of your Firm. You will be responsible for ensuring that the Firm’s end users will maintain all relevant provisions in this EULA.
End users of customers are authorized to independently obtain single Licenses by direct download from the Apple App Store.
The Company may provide you and all Customers with notices about software issues, upgrades or enhancements which depend on the Notification settings of the app being switched on. The Company is not responsible for any failure to receive such notices due to the setting being “OFF” or the Device being disconnected from the Internet for a prolonged period.
Your end users will use the mobile Device with care while walking or in any environment with actual or potential physical hazards.
Customers and users are authorised to connect to external computers, monitors, televisions and other displays either via cable or wirelessly so as to display the Dashflow screen while managing Dashflow activities on the Device.
- Intellectual Property (“IP”) Rights
The Company owns all right, title and interest in and to the Licensed Application including without limitation all intellectual and proprietary rights appurtenant thereto, and, except for the limited License granted to you herein, nothing in this EULA shall be construed to transfer, convey, impair or otherwise adversely affect our ownership or proprietary rights therein or any other Company information or materials, tangible or intangible, in any form and in any medium.
You may not remove any proprietary trademarks, copyright notices, other notices or labels from the Licensed Application or any related services. You must reproduce copyright and trademark notices in your use of the Application.
You may not alter, modify, decompile, reverse engineer, disassemble or otherwise alter the Licensed Application or convert it to a human-readable form.
You may not reproduce, distribute, sell or create any derivative works based on the Licensed Application or related services without expressly being authorized in writing to do so by the Company.
The Company remains the owner of its IP rights. There is no transfer of any of the Company’s IP rights by reason of this License or the provision of the Application or other materials to you.
The Company is fully exempt from any liability for any release of Customer IP that results from the use of the sharing facilities of the Application whether accidental and inadvertent or due to improper or negligent actions of the user. You acknowledge that there is always a risk of unintended release or disclosure of your information and you accept that risk without holding the Company responsible if it materialises.
You agree that all suggestions, criticisms, feedback, contributions and ideas for the Software proffered to the Company by you, a Customer, or any other person using the Application at any time and for any reason by any means, including in gaining help and support, whether pertaining to ease of use, appearance, features, bugs or any other Software matter, do not represent confidential or proprietary information and become the property of the Company and no IP rights will remain or reside with the Customer. You hereby fully assign all the IP Rights to the Company in any such work, information, or other contribution for the full duration thereof around the work both present and future for any purpose without compensation now or in the future, financial or otherwise.
You and us acknowledge that, in the event of any third party claim that the Software or the end user’s possession and use of that Application infringes that third party’s intellectual property rights, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim where that is possible. You expressly also release the Company for any liability, loss, damage, or other cause of action that may be occasioned to you, and to the extent the law does not permit such a release you agree that the Company’s liability to you shall be limited to such amounts as have been paid by you to the Company in the 12 months preceding the date when the liability arises.
- Apple Inc.
Your terms and conditions with Apple are governed by independent EULAs.
You recognize that provision of the Software by the Company is dependent upon Apple systems, rules and policies.
The Company will do its best to mitigate arrangements enforced by Apple that it believes are inappropriate, faulty or not in your best interests. However, you recognize that there are severe limits to what is possible for the Company.
Apple may at any time change its systems, rules and policies in ways that may not suit your Firm, our Company or the Licensed Application. Such changes are not the responsibility of the Company and any complaints should be directed to Apple.
Apple does not constitute part of this EULA and is not responsible for: (i) business-to-business Software, (ii) the furnishing or support of services with respect to the Software, (iii) Software warranty obligations or any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranties expressed or implied in these Terms.
- Third Parties
You and the Company acknowledge and agree that Apple is a third party beneficiary of this EULA and that, upon the end user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA with your end users as a third party beneficiary thereof.
You acknowledge you have had opportunity to read the EULA Terms when using the App Store or VPP Store to access the Software and have read the relevant EULAs for any Apple or other third party service or product that you may use in conjunction with Dashflow™ or other Licensed Application of ours.
You may choose to use auxiliary software to enable the centralized management of mobile devices, for corporate security or for other ancillary purposes. While the Application is designed and expected to be compatible with such software, their variety and constant updating means that the Company does not guarantee or warrant that the Application will be compatible at any point in time with such software.
You acknowledge that end users need their Device connected to the internet for (i) initial user authentication purposes; (ii) to share with 3rd parties of their choice Application outputs as attachments via email, SMS or other electronic methods of transmission; (iii) to access certain software functions like (but not limited to) voice entry of data, mapping, temporary storage; and (iv) for other purposes specific to the particular Application.
You, and not the Company, are responsible for the secure use of the Internet, choice of ISP or telecommunications carrier, backups of data, corporate features of the Software, and the activities and choices of users in distributing outputs of the Software.
The Software may use third party information and services, for example in regard to location data, and you accept that the Company is not responsible for that information and provides no endorsement or warranty in regard to the accuracy, completeness, legality or other relevant quality of such information.
- No Warranty
No complex software is ever complete or free of errors or bugs and this may lead to poor functioning or malfunction of the Application. The Software may also become corrupted for reasons wholly independent of the Company or the integrity of the Software coding.
The Software is provided ‘as is’ and ‘as available’; and you bear the risk of using it for any commercial real estate investment, advice or associated choices or work activities. Should the Software prove defective in a particular instance, you assume the entire cost of all necessary corrective action for your situation. You expressly acknowledge and agree that the use of the Software is at your sole risk, and the entire risk as to the satisfactory quality, performance, accuracy lies with you and that you accept the Software with all its faults and deficiencies known and unknown and without warranty of any kind.
To the maximum extent permitted by applicable law, we will therefore not be responsible for any losses, claims, liabilities, damage or expenses that may result directly or indirectly from using it. The Company including its subsidiaries, officers, employees, contractors and agents hereby disclaims all warranties, guarantees and conditions with respect to the Software including but not limited to merchantability, meeting your requirements, fitness for a particular purpose and non-infringement of third party rights. The Company offers no guarantee that the operation of the Software will be uninterrupted or error-free or that errors will be corrected; and so no oral or written information or advice obtained from the Company or its authorized representatives should be taken to provide or create a warranty or guarantee.
You also acknowledge that you have satisfied yourself as to the suitability of the Software for use for your purposes and have not relied on the Company in making your decision to license and/or use the Software. You acknowledge that to the extent the Company has made any representation which is not otherwise expressly stated in this license, you have been provided with an opportunity to independently verify the accuracy of that representation and have not relied on the representation in acquiring the license or using the Software.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a customer, so the exclusion and limitations in the above Clauses (7.1, 7.2, 7.3) may not apply to you fully in those jurisdictions. You acknowledge that, in those jurisdictions only, those clauses will be read down so as to apply to the full extent permitted.
- Limitation of Liability
In no event, shall we be liable for personal injury or any incidental, special, indirect or consequently damages whatsoever including without limitation damages for loss of profits, loss of data, business interruption or any other harms or losses arising out of your use or your inability to use the Software however caused and even if the Company or Apple is aware of the possibility of such problems.
This limitation applies to anything related to the Software, services, content (including code) and claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
You can recover from Apple and/or the Company only direct damages up to the amount you paid for up to 3 months of fees prior to Apple or the Company being notified of any complaint or a total of fifty (50) Australian dollars whichever is the greater. In no event shall the Company’s total liability to you for indirect damages exceed the amount of ten (10) Australian dollars.
The limitations and exclusions in the above Clauses (8.1, 8.2, 8.3) may not apply to you because your country does not allow the exclusion or limitation of liability for personal, incidental, consequential or other damages.
You agree to defend the Company, its parent, subsidiaries, affiliates and/or their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, business and promotional partners, operational service providers, suppliers and contractors (the “Indemnified Parties”) against any and all claims, demands and/or actions and indemnify and hold the Indemnified Parties harmless from and against any and all losses, damages, costs and expenses (including the full amount of legal fees), resulting from any breach or violation of this EULA, infringement, misappropriation or any violation or breach of the rights of any other party, violation or breach or noncompliance with any law or regulation, the breach or violation of any term or condition of this license with us, any use, alteration or export of the Software or otherwise in connection with this EULA. Your obligation to indemnify us extends to any loss suffered by you and anyone else arising from a breach of the license by you, us, or both, and the willful, unlawful or negligent act or omission of you, us, or both.
We reserve the right to assume, at our expense, the exclusive defense and control of any claims or actions and all negotiations for settlement or compromise, and you agree to fully cooperate with us upon our request.
- Refund Policy
Subscriptions for use of a Licensed Application are issued with a specific start date and end date.
Except as otherwise provided for herein, you may not cancel, terminate or rescind a subscription during its term. Any and all payments by you for access to a Licensed Application are final.
In the event the Software fails to conform to an applicable standard or you have serious complaints about its functioning, you will notify us immediately via firstname.lastname@example.org.
You have no right to a refund once a Subscription has been purchased. Refunds may be agreed by the Company for a good reason and the amount will adjusted to the higher rate for a shorter period if appropriate and then calculated pro-rata on a daily fee basis.
If the Licensed Application is permanently terminated by the Company to stop your use, the Company shall prorate your prepaid Licensed Application Subscription fee for any unused portion. The prorated refund shall be calculated based on number of calendar days from the date of permanent termination and the last day of the pre-paid subscription term.
Apple manages payments for the License fee that entitles you to obtain, download and install the Licensed Application from the Apple Store. Any issues with that process must be referred to Apple.
Use of the Licensed Application on any Device requires purchase of a Subscription from the Company. Any issues with opening, registering and using a downloaded and installed Application must be referred to the Company.
Payment of a Subscription permits customers to use a Company Application regardless of preferred platform, operating system or device, for example on an Android Device or on a Windows desktop system, wherever those options are provided by the Company.
Subscriptions must be paid in advance of use at the specified rate agreed with the Company together with any Value Added Tax, Sales Tax or similar which is required in the jurisdiction of the Apple Store where you purchased the Subscription. A Company invoice will be issued for each purchase order, and when payment is received you will be notified of the expiry date or renewal date of the Subscription period.
The Subscription may be one-off or auto-renewable at the Company’s discretion. One-off subscriptions require a new order to be placed by the Customer at the end of the Subscription period. Prior to the end date of an auto-renewable subscription, a reminder will be sent to enable cancellation and, unless a cancellation is made, on the end date of an auto-renewable Subscription period, a new Subscription period automatically commences, payment is automatically taken, and an invoice is dispatched.
You acknowledge that you deal directly with the Company in regard to Subscriptions and you must contact the Company if you have a problem or complaint and not contact Apple or hold Apple responsible for any such problem or complaint.
Promotions and other special discounted pricing offers are temporary and, upon the renewal of your Subscription, any such discounted pricing offers may expire. The Company reserves the right to update its pricing and discontinue or modify any special promotional offers at its sole discretion. The Company reserves the right to provide special deals for certain Customers where that is mutually commercially advantageous. In line with Apple’s policies, pricing will differ according to the jurisdiction and currency of the Apple Store where the License is obtained.
Apple rules and policies govern their notification and application of increases or decreases in License fees. The Company may also increase or decrease its Subscription fees, and will inform you of such changes by Notification popups, newsletter, special email or other suitable means.
- Use of Data
You agree that the Company may collect and use technical data and related information, including but not limited to technical information about Your Device, system and application software and peripherals that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) to You related to the Licensed Application.
The Company may use this information to improve its products or to provide services or technologies to You. By voluntarily providing Your personal or corporate information (both being ”Data”) to the Company and its affiliated third parties, you consent to the Company and the affiliated third parties that we may collect, use and transfer your Data in accord with clause 12.1.
Where the Application has facilities for sharing distributing or disseminating Customer data including but not limited to information, settings, files, screenshots and analyses, then the use of that facility is the entire responsibility of the Customer and any breaches of privacy, loss of IP, or harmful consequences that result from sending out data must be managed by the Customer without recourse to the Company. This clause should be read in conjunction with Clause 4.6.
- Loss of Data
Dashflow™ and related Applications are designed to provide a model or support the provision of a model that must be otherwise developed on a desk-top or laptop computer. The various intermediate and end results of using our Software for a property deal may involve export by electronic means to enable further study and development on such machines. Any loss or corruption of data that may occur during this transmission process is not a responsibility of the Company.
All asset appraisals, once started, are saved within the Application and may be accessed to be undone, altered, improved or completed as the user wishes. Because upgrading Software always carries a risk of loss, it is recommended that users produce, save and export their results as soon as practicable following data input.
It may be that certain upgrades (“Special Upgrades”) will only be effective if the Application is fully deleted and re-installed. Such actions will result in the loss of all saved data and users must take their own precautions to mitigate that loss by using the appropriate export capabilities within the Software. Should such a Special Upgrade be required, the Company will provide notice by email and/or Notification popup and/or other means.
The Company will not be liable for the financial or time costs consequent on the loss of data whether due to Special Upgrades or any other cause and whether based on human error, random corruption or device malfunction.
The Company seeks to provide for Device and data security and control within the Licensed Application insofar as is practicable.
For maximum security when purchasing Licenses, the Customer is recommended to select Managed Distribution in the VPP Store so as to enable deployment of licenses to Devices via Mobile Device Management. The less secure alternative is to proceed via direct App Store downloading by each user.
You must make your own provision for security to complement what the Company provides. There is no guarantee that the Software will be compatible with your security systems.
Specifically, personal security settings on Your Device should maintain a locked status in the event the Device is left unattended or inactive for a maximum of 10 minutes.
No software is free of security flaws and bugs and so no absolute guarantee or warranty can be provided in this regard.
- Software Modification
The Company reserves the right to modify the Licensed Application at any time in order to comply with Apple’s operating system changes, Our development plans, Apple policies and licensing regulations, or legal requirements that may apply.
In the event that certain functions, workflows and/or tools within the Software become unavailable, incompatible or inoperable, the Company may remove the function, workflow and/or tool and the provision of any replacement will be at its sole discretion.
Help with Software use is available from the Company website at: http://www.intellect-automation.com or http://www.dashflowCRE.comwhich may include a User Forum (see Section 17).
Uses may get specific support in operating the Software by sending details of the issue to us at email@example.com, or using the in-app support feature. We will acknowledge your request and respond promptly by email. We will also offer phone support via Skype, Zoom or similar if website and email resolution is not possible.
Free support for the Software is available during the free trial period and for the initial 6 months of subscription. Additional free support beyond this period will be provided at the discretion of the Company.
Because Dashflow™ Software is provided for professional users, enquiries which reveal a lack of experience and understanding of institutional commercial real estate investment will be referred to an internal or external service that offers training and development in real estate investment appraisal and spreadsheet modelling.
- User Forum
The User Forum is a service which may be offered to Dashflow users via a Company-controlled website.
The User Forum has commenting facilities to allow subscribed Users to share opinions and ask questions. The Company gives no guarantee as to the accuracy of any information on this Forum or the safety of any external links it might contain. The Company can therefore not be held responsible for any problems or damage that occurs as a result of making use of material in the Forum.
Any and all of the content in the User Forum becomes subject to a Company copyright (cf. Clause 4.7). The wholesale reproduction of content for public view, including copying with partial modification of content, is not permitted without prior written consent.
- Legal compliance:
You warrant that:
your end users will not be located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
your end users are not listed on any U.S. Government lists of prohibited or restricted parties.
This EULA is effective until terminated or upon expiration of the paid Subscription period. However, your rights under this EULA terminate if you fail to comply with it.
We may at any time terminate this license without cause upon giving 30 days prior notice in which case we shall have no liability to you or any person other than to refund to you such payments as we have received from you in the 12 months before we give you notice under this clause.
Immediately upon termination or expiration, you will delete the Software with its data from your Device.
You may keep (for business or archival purposes) all exported models and other exported materials generated on your Device during your period of active Subscription.
Warranty disclaimers (Clause 7), the limitation of liability (Clause 8), ownership of IP rights (Clause 4), data use (Clause 12) and this Clause 19 on termination will survive termination.
- Change to the EULA
The Company reserves the right to change these Terms at any time. While it is not our current intention to do so, there may be factors that require us to implement changes. Any changes will be notified to You via Your registered email.
- Governing Law
This EULA will in all respects be governed by and construed in accordance with the laws for the time being in New South Wales, Australia or the courts of the Commonwealth of Australia. You agree that you will not seek to commence proceedings in any place other than in the State of New South Wales, Australia or any Courts outside Australia.
- Licensor’s rights
Any express statement of a right of the Company in this license is without prejudice to any other right of the Company expressly stated in this license or existing at law.
- Survival of agreement
Subject to any provision to the contrary, this license shall enure to the benefit of and be binding upon you and your successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
The covenants, conditions and provisions of this license which are capable of having effect after the expiration of the license shall remain in full force and effect following the expiration of the license.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
Name: Intellect Automation International Limited
Address: Head Office: GPO Box 538, Sydney, NSW 2001, Australia.
This EULA becomes legally binding on downloading the Software. You acknowledge that you have read the entire EULA, understand it, accept that you are bound by it and intend to fully comply with all of its Terms.
Last Revision: 24 July 2019.
Copyright © Intellect Automation International Pty Limited.
All Rights Reserved.
Intellect Automation International Pty Ltd. All rights reserved. 2021