1. Definitions

In addition to the definitions above, the following definitions apply in this EULA:

GDPR means European Union Regulation 2016/679, also known as the General Data Protection Regulation, or any successor legislation.

Intellectual Property means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

Laws means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

Personal Information means personal information or personal data as defined in the privacy or data protection legislation applicable to the End User or other relevant individual whose information is collected, stored, used or transferred in the course of this EULA and, without limitation, means “personal data” as defined in the GDPR for End Users who reside in the EEA and “personal information” as defined in the Privacy Act 1988 (Cth) for End Users who reside in Australia.

Sensitive Personal Information means any (i) special categories of personal data enumerated in Article 9(1) of the GDPR; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s licence numbers or other government identification numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

Term means the term that this EULA remains in effect in relation to an End User, which is subject to the termination provisions in Section 3 below.
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2. Grant of Licence in the Nevam Platform

Subject to the terms and conditions of this EULA, Nevam hereby grants End User a limited, non-exclusive, non-transferable, non-sublicensable license to use the Nevam Platform during the Term.
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3. Termination of Licence

Without prejudice to any other rights Nevam may have, Nevam may terminate the licence in Section 2 in relation to an End User if that End User fails to comply with the terms and conditions of this EULA. In such event, the Term comes to an end and the relevant End User must immediately cease using the Nevam Platform.
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4. Modifications to the Nevam Platform

Nevam may modify or change the Nevam Platform at its sole discretion at any time. Nevam shall have no liability of any kind to End User flowing from any adverse effects resulting from such changes to the Nevam Platform.
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5. End Users’ responsibilities
   
   1. End User is responsible for (and must have sufficient authority to take) all actions that are performed on or through its Nevam account, including any procurement or use of third party products or services (and associated disclosure of data) in connection with the Nevam Platform.
   2. End Users must keep their username and password for the Nevam Platform strictly confidential and must not share such information with any unauthorised person. End Users are responsible for any and all actions taken using their accounts and passwords.  End Users must immediately notify Nevam of any unauthorised use of which they become aware.
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6. Acceptable Use Policy
   
   1. End Users may not, and may not allow any third-party, to use the Nevam Platform to display, store, process or transmit, or permit use of Nevam Platform to display, store, process or transmit material that infringes or misappropriates a third party's Intellectual Property rights;
   • hate-related or violent material;
   • material advocating discrimination against individuals or groups;
   • obscene or otherwise objectionable material;
   • material related to illegal drugs or paraphernalia;
   • Sensitive Personal Information;
   • malicious code, such as viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs;
   • material advocating or advancing criminal hacking or phishing; or
   • material that violates, encourages or furthers conduct that would violate any applicable Laws.
   2. End Users may not, and may not allow any third-party, to use the Nevam Platform to:
   • data mine or harvest any web property to find email addresses or other user account information;
   • send unauthorised mail via open, third-party servers;
   • sell to, exchange with, share with or distribute to a third party any Personal Information;
   • send, upload, distribute or disseminate, or offer to do the same, with respect to unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, excessively profane, hateful, violent, or otherwise objectionable material, or promote, support or facilitate unlawful, hateful, discriminatory, or violent causes;
   • distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
   • generate or facilitate unsolicited commercial email (spam) or generate or facilitate SMS, MMS, or other text messages or push notifications in violation of applicable anti- spam, telemarketing or telephone consumer protection laws or regulations;
   • in a manner that violates any applicable industry standards, the Nevam Privacy Policy or the SaaS Agreement;
   • transmit material that may be harmful to minors;
   • illegally transmit another's Intellectual Property without such owner's or licensor's permission;
   • impersonate another person, entity or Nevam or otherwise misrepresent themselves or the source of any communication;
   • violate the privacy rights of others;
   • promote, facilitate or encourage illegal activity;
   • interfere with other subscribers or end users' use of the Nevam Platform; r
   • use the Nevam Platform in any manner that would damage the reputation of Nevam.
   3. Specifically in relation to the Nevam Platform, without limiting anything in sections 6.1(a) or (b) above, End Users may not:
   • reproduce, modify, adapt or create derivative works of the Nevam Platform;
   • rent, lease, distribute, sell, sub-license, transfer or provide access to the Nevam Platform to a third party;
   • use the Nevam Platform for the benefit of any third party;
   • incorporate the Nevam Platform (or any part of it) into a product or service provided to a third party;
   • interfere with or otherwise circumvent mechanisms in the Nevam Platform intended to limit use;
   • reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public application programming interfaces (APIs) to the Nevam Platform, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);
   • remove or obscure any proprietary or other notices contained in the Nevam Platform;
   • use the Nevam Platform with the purpose of competing with Nevam or in such a way that has the effect of competing with Nevam, including for competitive analysis or to build competitive products;
   • publicly disseminate information regarding the performance of the Nevam Platform;
   • authorise or display any form of advertising that uses Account Data; or
   • encourage or assist any third party to do any of the foregoing.

7. End User Content

For the purpose of enabling Nevam to provide the Nevam Platform and associated services:

(a) each End User grants Nevam a licence of all rights of Intellectual Property they  have in the content that they upload to the Nevam Platform; and.

(b) each End User waives any Moral Rights they may have in the content that they upload to the Nevam Platform (“Moral Rights” for this purpose means rights of integrity of authorship, rights of attribution of authorship of a work and rights not to have authorship of a work falsely attributed).
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8. Intellectual Property Complaints

It is Nevam’s policy to respond expeditiously to valid notices of claimed Intellectual Property infringement. Nevam reserves its rights to remove allegedly infringing material or terminate the access rights of End Users who Nevam suspects to be repeatedly or blatantly infringing Intellectual Property rights.
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9. Information Collection

(a) Nevam Platform will only collect End Users’ Personal Information to the extent that End Users submit such information. The Nevam Platform will not automatically access, collect, store or transmit any Personal Information residing in any End User’s computer environment as part of its functionality.

(b) Data collection by the Nevam Platform is strictly limited to only what is needed to deliver the Nevam Platform and associated services, as further described . Third parties are forbidden from using shared data for any profiling, targeting, or other behaviour not directly connected to providing the Nevam Platform. Nevam may use the information transmitted by the Nevam Platform for activities such as determining usage for billing and license compliance and helping improve upon and market its product and service offerings. Nevam may retain this information in perpetuity.

(c) In relation to any Personal Information that End Users submit for the purpose of use of the Nevam Platform, Nevam may also de-identify such Personal Information and aggregate with other de-identified Information for the purpose of producing new Nevam products for internal use or commercialisation.

(d) The Nevam Platform collects certain data and information about End Users in connection with use of the Nevam Platform and otherwise in connection with this EULA. Nevam collects and uses all such data and information in accordance with the Nevam Privacy Policy, and each End User agrees to the Privacy Policy terms. If you provide us with Personal Information relating to any other individual, including any other End User, then you warrant and represent that you have obtained the consent of such individual to provide us with such Personal Information for the purposes set out in the Nevam Privacy Policy.
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10. Trademarks

(a) The word “Nevam” and any other product or service names, slogans, graphics, logos, page headers, button icons and scripts contained in or used with the Nevam Platform, except as otherwise noted, are trademarks or trade dress of Nevam. Nevam’s trademarks and trade dress may not be used in connection with any product or service that is not Nevam’s, in any manner that is likely to cause confusion, or in any manner that disparages or seeks to discredit Nevam.

(b) Reference to any products, services, processes or other information, by trade name, trademarks, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Nevam.
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11. Age restriction

The Nevam Platform is not intended for, and should not be used by, anyone under the age of 16. If you as an End User are under 16 years old you must immediately cease using the Nevam Platform and this EULA will terminate.
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12. Control over the Nevam Platform

Nevam may limit, suspend or terminate an End User’s use of or access to the Nevam Platform if, in Nevam’s reasonable discretion, the End User breaches or may breach the Acceptable Use provisions in section 6 above, any other material provision of this EULA or the End User is otherwise adversely affecting the performance or operation of the Nevam Platform.
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13. Disclaimer
    1. Nevam does not warrant that the Nevam Platform will operate without error or interruption. The Nevam Platform is not designed, intended or warranted for use in hazardous environments requiring fail-safe controls, including without limitation, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support equipment, emergency services or weapons systems.
    2. Other than the warranty in section 13(a), Nevam provides no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them (such as the statutory warranties available to Australian consumers addressed in section 14).
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14. Warranties
    1. Nevam warrants that the Nevam Platform will, for one year from the date End User first used the Nevam Platform, perform substantially as described in the applicable user documentation.
       
       1. The limited warranty in section 13(a) is subject to the following limitations:
       2. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
    2. this limited warranty does not cover problems caused by accident, abuse or use of the Nevam Platform in a manner inconsistent with this EULA or our published documentation or guidance, or resulting from events beyond our reasonable control; and
    3. this limited warranty does not apply to problems caused by a failure to meet minimum system requirements.
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15. Australian ConsumersFor End Users who are ‘consumers’ within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 then despite any other provision of this EULA the following shall apply:
    1. The Australian Consumer Law provides statutory guarantees that cannot be excluded under this EULA, including that goods will be of acceptable quality and services will be supplied with due care and skill. If Nevam fails to comply with any such statutory consumer guarantee, Nevam's liability is limited to the following:
    2. in connection with the provision of warranty and support services for the Nevam Platform, to any one or more of the following (at Nevam's discretion): (i) the supply of the services again; or (ii) the payment of the costs of having the services supplied again; and
    3. in connection with the provision of the software, to any one or more of the following (at Nevam's discretion): (i) the replacement of the software or the supply of equivalent software; (ii) the repair of the software; (iii) the payment of the costs of replacing the software or of acquiring equivalent software; or (iv) the payment of the costs of having the software repaired; and
    4. otherwise, is excluded to the maximum extent permitted by the Australian Consumer Law.
    5. Nothing in this EULA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by the Australian Consumer Law which cannot be lawfully excluded or limited; and
    6. The benefits provided by the warranties in this EULA are in addition to other rights and remedies available under a law in relation to the goods or services to which the warranty relates.
    7. The Nevam Platform may be capable of retaining user-generated data. Nevam hereby provides End Users with notice that if Nevam repairs, upgrades or changes the Nevam Platform, that repair, upgrade or change may result in the loss of that data. To the fullest extent permitted by the Australian Consumer Law, the limitations and exclusions of Nevam's liability in this EULA apply in respect of any such loss of data.
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16. Limitation of liability

Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, failure of security mechanisms, business interruption, or loss or inaccuracy of data or business information, howsoever caused even through negligence and even if the party knew or ought to have known they were possible or reasonably foreseeable.
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17. Notices

If an End User believes that they may be entitled to any warranty or claim under this EULA or any of the above remedies, please email brittfox@nevamcx.com.
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18. Force Majeure

Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, volcanoes, global pandemics (including viruses), flood, severe storms, strike, embargo, labour disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of the Nevam Platform and associated services).
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19. Entire Agreement

This EULA is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.
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20. Applicable Law and Venue
    1. This EULA is governed by the laws of the State of New South Wales in Australia, without regard to its conflict of laws principles, except that (a) if the End User is a U.S. Government entity, this EULA is governed by the laws of the United States, and (b) if you are a state or local government entity in the United States, this EULA is governed by the laws of that state.
    2. Any action to enforce this EULA must be brought in the State of New South Wales in Australia.
    3. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights.
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21. Survival

The following provisions will survive any termination or expiration of this EULA: Sections 3 (Termination), 14 (Warranties), 15 (Australian Consumers), 16 (Limitation of Liability), 17 (Notices), 19 (Entire Agreement), 20 (Applicable Law and Venue) and this Section 21 (Survival).

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