Governing document

1. The terms of this document govern the relationship between the licensee (you) and Cohda Wireless Pty Ltd (Licensor) in respect of use of the SDK by you. Where you are agreeing to be bound by this document on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this document. If you do not have the requisite authority, you must not accept this document or use the SDK on behalf of your employer or other entity.
2. Your entitlement to use the SDK is conditional upon you agreeing to the terms set out in this document. The SDK is offered for use by you on the condition that you read and accept this document and agree to be bound by its terms.
3. By installing, using or accessing the SDK, you are considered to have accepted the terms set out in this document. If you do not agree with or otherwise wish to accept the terms set out in this document, do not install, use or access the SDK.

Definitions and interpretation clauses

1. Definitions

   Business Day – means a day on which banks are open for business in Adelaide, South Australia excluding a Saturday, Sunday or public holiday in that city.

   Device – means a single device owned or controlled by you.

   Generated Content – means content, including software, generated, created, made or otherwise brought about as a result of using the SDK.

   Government Agency – means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange.

   Intellectual Property – means any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with:
   means

   1. any related confidential information, trade secrets, know-how or any right to have information kept confidential;
   2. copyright (including future copyright and rights in the nature of or analogous to copyright);
   3. trade marks, service marks and other related marks; and
   4. all associated goodwill,

   whether or not existing at the date you agree to these terms and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.

   Products – means products offered by the Licensor, including software, hardware, and services, but does not include the SDK.

   SDK – means the software development kit licensed by the Licensor to which this document applies.

   Update – means an update supplied by the Licensor that replaces or supplements the original SDK.

2. Interpretation

   In this agreement unless a contrary intention is expressed:

   1. headings and italicised, highlighted or bold type do not affect the interpretation of this agreement;
   2. the singular includes the plural and the plural includes the singular;
   3. a gender includes all other genders;
   4. other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
   5. a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);
   6. a reference to any thing (including any right) includes a part of that thing, but nothing in this clause 2(f) implies that performance of part of an obligation constitutes performance of the obligation;
   7. a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this agreement and a reference to this agreement includes any clause, annexure, exhibit and schedule;
   8. a reference to a document (including this agreement) includes all amendments or supplements to, or replacements or novations of, that document;
   9. a reference to a party to any document includes that party’s successors and permitted assigns;
   10. a reference to time is to Adelaide, South Australia time;
   11. a reference to an agreement other than this agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
   12. a reference to a document includes any agreement or contract in writing, or any certificate, notice, deed, instrument or other document of any kind;
   13. a provision of this agreement may not be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or the preparation or proposal of that provision;
   14. a reference to a body, other than a party to this agreement (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
   15. the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in this agreement do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary;
   16. a reference to a day is to the period of time commencing at midnight and ending 24 hours later;
   17. if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day; and
   18. a reference to ‘$’, ‘A$’, ‘AUD’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia.

3. Business Day

   If anything under this agreement is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.

SDK

1. SDK licence

   Subject to the terms of this document, the Licensor grants you a non-exclusive, non-transferable licence to use the SDK solely for the purpose of developing Generated Content for, or interoperable with, the Licensor’s Products.

2. Restrictions

   1. You must not rent, lease, lend, sell, transfer, redistribute or sublicense the SDK, or make the SDK available over a network where it could be used by multiple Devices at the same time. If you sell or otherwise dispose of, transfer or assign any Devices containing the SDK, any copies of the SDK must be removed before doing so.
   2. Other than as expressly provided in this document or otherwise permitted by law, you must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the SDK, or any part thereof.
   3. You must not use the SDK to create Generated Content for any purpose other than for use with the Licensor’s Products.
   4. You must not use the SDK to produce or assisting in producing:
      1. products that compete with the Products; or
      2. software for use with products that compete with the Products.

3. Intellectual Property

   Subject only to clause 3.4, the Licensor retains all right, title and interest to all Intellectual Property rights subsisting in the SDK, any Updates, and any part thereof.

4. Third Party Notices

   1. The SDK may utilise or include third party software and other material protected by copyright. Acknowledgments, licensing terms and disclaimers for such material are contained in the SDK and/or its documentation, and use of such material is governed by their respective terms.
   2. Certain third party software included with the SDK may be licensed under the terms of the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), or another open source licence whereby the Licensor is required to make the source code for such software available. Where such source code is not included with the SDK, you may obtain a copy of this by contacting the Licensor.

Updates

1. Terms

   The terms of this document (as amended pursuant to clause 13.1) will govern any Updates, unless such an Update is accompanied by a separate licence supplied by the Licensor in which case the terms of that licence will govern to the extent provided for.

2. Acknowledgements

   You acknowledge and agree that the Licensor:

   1. is under no obligation to provide any Updates;
   2. can offer optional paid Updates;
   3. can use Updates to add, remove, modify or otherwise alter features of the SDK at its sole discretion, and that such changes will not be a breach of this document;
   4. can require you to install Updates to the SDK in order to continue to ensure its ability to interoperate with any Products;
   5. can provide Updates such that the SDK may be no longer be compatible with:
      1. particular Products; and/or
      2. Generated Content made with previous versions of the SDK;
   6. can provide Updates in such a manner that the SDK is unable to be reverted to its previous state.

3. Other software

   In order to obtain, install, update, access, use, or continue to access or use the SDK, you may also be required to update third party software (such as the operating system) on your Device.

   You acknowledge and agree that:

   1. the Licensor is not responsible for such third party updates;
   2. such third party updates may be subject to their own terms and conditions, which the Licensor strongly recommends you review prior to implementing the third party update; and
   3. if you are unable or unwilling to obtain or install such third party updates, you may be unable to obtain, install, update, access, use, or continue to access or use the SDK.

4. Products

   You acknowledge and agree that the Licensor may modify its Products such that they are no longer compatible with Generated Content.

Your obligations

1. Restricted parties

   You warrant and represent that the following statements are true and correct:

   1. you are not located in a country that is subject to an embargo by the governments of the United States of America or the Commonwealth of Australia; and
   2. you are not included on any list of prohibited or restricted parties by the governments of the United States of America or the Commonwealth of Australia.

2. Third party services

   1. You may be required to use certain third party services in order to obtain, install, update, access, use, or continue to access or use the SDK.
   2. Access to the SDK, or parts thereof, may require your Device to be connected to the internet or require other third party services.
   3. You must comply with any applicable third party terms of agreement when using the SDK. You are responsible for ensuring that your installation and use of the SDK does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.
   4. The SDK may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them, and that your use of any third party content or services may be subject to separate terms and conditions.

3. Restrictions

   You agree that you will not:

   1. attempt to disrupt the normal operation of the SDK, any Products, or any infrastructure operated by the Licensor or other business activities of the Licensor;
   2. attempt to gain unauthorised access to the SDK;
   3. make any automated use of the SDK;
   4. impersonate any other person in using the SDK; or
   5. use the SDK in connection with the actual or attempted contravention of any applicable laws.

Support

Unless otherwise specified in this document or agreed pursuant to a separate written agreement between you and the Licensor, the Licensor will not be obliged to support the SDK, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the SDK by you.

Duration of Licence

1. Term

   Subject to the remainder of this clause, the licence granted to you in clauses 3.1 is granted in perpetuity.

2. Termination

   This licence can be immediately terminated by the Licensor in the following circumstances:

   1. you are in breach of any term of this document, or threaten to breach any term of this document;
   2. you, being a corporation, become the subject of insolvency proceedings, or threaten to do so;
   3. you, being a firm or partnership, are dissolved, or threaten to be dissolved;
   4. you destroy the SDK for any reason, or threaten to do so; or
   5. you so elect in writing.

   Upon termination, you will destroy any remaining copies of the SDK and any associated documentation or otherwise return or dispose of such material in the manner directed by the Licensor.

   Termination pursuant to this clause will not affect any rights or remedies which the Licensor may have otherwise under this document or at law.

   Nothing in this clause limits any right the Licensor may have pursuant to this document to modify the SDK by way of Update, including by removing any features from the SDK.

Warranty

1. You acknowledge that the SDK cannot be guaranteed to be error free and further acknowledge that the existence of any such errors will not constitute a breach of this document.
2. Except as expressly provided to the contrary in this document, and to the full extent permitted by applicable law, the Licensor will not be liable to you for any loss, including special, indirect or consequential damages (such as loss of profits), or claim, arising out of breach of this document, arising out of use of any Generated Content, or arising out of the supply of defective SDK.
3. To the full extent permitted by applicable law, the Licensor expressly disclaims all warranties and without limiting the preceding paragraph, to the full extent permitted by applicable law, the Licensor’s liability for any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by the Licensor, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations is limited to (at the Licensor’s option):
   1. in the case of goods, including the SDK (to the extent the SDK is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you; or
   2. in the case of services – supplying the services again or paying the cost of having the services supplied again.
4. Without limiting or affecting any other provision of this document, to the full extent permitted by applicable law, the Licensor’s maximum aggregate liability to you for any losses you incur or claims you make against the Licensor is limited to the sum of AUD$10.
5. You acknowledge that you have exercised your independent judgment in acquiring the SDK and have not relied on any representation made by the Licensor which has not been stated expressly in this document or upon descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by the Licensor.

Indemnity

You agree to indemnify the Licensor fully against all liabilities, costs, losses, claims and expenses which the Licensor may incur to a third party as a result of:

1. use of any Generated Content by you or any third party; or
2. breach of any of the provisions of this document by you.

Intellectual Property

1. No transfer

   This document does not constitute a transfer or conveyance of any Intellectual Property owned by the Licensor as at the date of this document, including but not limited to all Intellectual Property associated with the SDK, and its functionality, features and content, or operate as a future transfer of any Intellectual Property owned by the Licensor any time thereafter.

2. Acknowledgement

   You acknowledge that the SDK is protected by copyright and may also be protected as other forms of Intellectual Property owned by the Licensor. You will not during or at any time after the termination of this document undertake or permit any act which infringes or attempts to infringe those Intellectual Property rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the SDK except as otherwise expressly authorised or acknowledged by this document.

3. Reverse engineering

   You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the SDK, or any output from the SDK or any files related to the SDK.

4. Generated Content

   To the extent that any Generated Content created by you gives rise to any Intellectual Property rights independent of those held by the Licensor, you will retain ownership of these.

Security

1. Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst the Licensor strives to protect such information, it does not warrant and cannot ensure the security of any information transmitted to it by you. Accordingly, any information transmitted to the Licensor is transmitted at the risk of the sender. Nevertheless, once the Licensor receives transmissions from you, it will take reasonable steps to preserve the security of such information.
2. Users must take their own precautions to ensure that the process which they employ for accessing the SDK does not expose them to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices. For the removal of doubt, the Licensor does not accept responsibility for any interference or damage to Devices which arises in connection with use of the SDK.

Privacy

1. Privacy Policy

   The Licensor undertakes to comply with the terms of its Privacy Policy in respect of the SDK. This can be viewed at https://www.cohdawireless.com/about-cohda-wireless/privacy-policy, and this Privacy Policy (as updated from time to time) is incorporated into, and forms part of, the terms of this document.

2. Consent to use of data

   You agree that the Licensor may collect and use technical data and related information, including but not limited to technical information about the SDK, the Products, the Devices, system and application software, and peripherals that is gathered periodically. In addition to any other rights it may have to use this information pursuant to its Privacy Policy, the Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.

General

1. Amendment

   The Licensor reserves the right to amend, revise or replace this document from time to time. Amendments, revisions and replacements will be effective immediately upon posting through the SDK or at https://support.cohdawireless.com unless a later effective date is specified. Continued use of the SDK by you following such notification represents your agreement to be bound by the terms of this document as amended, revised or replaced, and your understanding and acceptance of the amended, revised or replaced document.

2. Assignment

   1. You cannot assign, novate or otherwise transfer any of your rights or obligations under this document without the prior written consent of the Licensor which consent can be granted or withheld in the absolute discretion of the Licensor.
   2. The Licensor can assign, novate or otherwise transfer any of its rights or obligations under this document at its sole discretion, without notice to you.
   3. An assignment in breach of clause 13.2(a) is intended by the parties to be void and of no force and effect.
   4. A breach of clause 2(a) by you entitles the Licensor to terminate this document.

3. Waiver

   1. A waiver of a right, remedy or power by the Licensor must be in writing and signed by the Licensor.
   2. The Licensor does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
   3. A waiver given by the Licensor in accordance with clause 13.3(a):
      1. is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
      2. does not preclude the Licensor from enforcing or exercising any other right, remedy or power under this agreement nor is it to be construed as a waiver of any other obligation or breach.

4. Severance

   If a provision in this document is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this document for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this document.

5. Governing law and jurisdiction

   1. This agreement is governed by and is to be construed under the laws in force in South Australia.
   2. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

6. Further assurances

   You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to this agreement and the transactions contemplated by it.

7. No reliance

   You acknowledge and agree that you have not relied on any statement by the Licensor which has not been expressly included in this document.

8. Entire agreement

   This document constitutes the entire agreement between you and the Licensor regarding access and use of the SDK, and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.As noted elsewhere in this document, use by you of Products, Devices, software or other products or services may be subject to further terms.

9. Exercise of rights

   1. Unless expressly required by the terms of this document, the Licensor is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this document.
   2. The Licensor may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this document. You must comply with any such conditions when relying on the consent, approval or waiver.

10. Clauses that survive termination

    1. Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination of this document, the following clauses survive the termination of this document:
       1. clauses 3.2 and 3.3;
       2. clause 5.3;
       3. clauses 6, 8, 9, 10, 11 and 12;
       4. clauses 13.4 and 13.5; and
       5. this clause 13.10.
    2. Each indemnity offered by you in this document is a continuing obligation, independent from the other obligations of the parties and survives the termination of this document. It is not necessary for the Licensor to incur expense or make payment before enforcing a right of indemnity against you under this document.

Contact

In the event that you need to contact the Licensor regarding this document or the SDK, please use the following details.

Cohda Wireless Pty Ltd
27 Greenhill Road, Wayville, South Australia, 5034 SA, Australia
+61 8 7099 5500
support@envyusscrum.com