PUBLISCHE SOFTWARE EULA
Last updated: 31 August, 2020
This End User License Agreement (EULA) is by and between Publische Pty Ltd ACN 624 272 215 (Publische) and the individual or legal entity (Subscriber) using the applicable software made available (whether by Publische or an authorised Publische affiliate or partner) by Publische and governs all use by Subscriber of the Licensed Software.
Specific terms of this EULA apply only to either the Commercial Software or the Trial Software, as more particularly specified below. By way of example, Subscriber may purchase a Commercial Software license key from Publische or an authorised Publische Affiliate or Partner at any time and convert Subscriber’s copy of Trial Software to the Commercial Software, in which case the provisions applicable to Commercial Software will apply from the time of such conversion.
1.1 Account Access means the access, use, or modification of a Subscriber’s account, Account Data, or Service by a software service or application developed by Subscriber or a third party for use with the Publische Software.
1.2 Account Data means data relating to a Subscriber that is stored or obtained through the Service and includes, without limitation, account login details, account configurations, Service usage data, meeting recordings, webinar recordings, voice recordings, meeting transcriptions, devices, instant message and chat data, or other Subscriber data created by using the Licensed Products.
1.3 Commercial Software means the Licensed Products identified in an order and licensed for a fee. PUBLISCHE may allow Subscriber to convert SaaS access or a licensed copy of Trial Software into Licensed Products by entering or installing a license Key for the Commercial Software subscription purchased by Subscriber.
1.4 Developer means a Subscriber who has completed the registration process and has agreed to this EULA in order to access the Licensed Software to develop applications that use or interact with the Licensed Software.
1.5 Documentation means the documentation and guides related to the Licensed Products freely available at http://publische.com/docs/.
1.6 End User means any person Subscriber permits to access or use the Services.
1.7 Feedback means any comments or other feedback Subscriber may provide to PUBLISCHE concerning the functionality and performance of the Licensed Products, including identification of potential errors and improvements.
1.8 Internal Use means the use of the Licensed Software in connection with Subscriber’s subscription to the Service for Subscriber’s internal business purposes in accordance with this EULA and not for use by any unaffiliated third party save as an End User.
1.9 Key means the license key or similar control mechanism to help ensure compliance with the use and time limitations with respect to Licensed Products.
1.10 Licensed Products means the Commercial Software or the Trail Software (or any other software made available by Publische) or each of them or all of them.
1.11 Offer Details means the terms, conditions and pricing of the Subscription ordered by Subscriber.
1.12 Open Source Software means any third party software that is distributed as “Trial Software”, “Open Source Software” or under a similar licensing or distribution model. Without limitation, Jitsi Meet and Jitsi Videobridge are Open Source Software.
1.13 Publish means to making the Licensed Product available to a third party other than Subscriber or for any purpose other than for use by Licensee for its Internal Use.
1.14 Renewal Term means any further Term that commences or continues from the previous Term automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the upcoming Renewal Term.
1.15 Services means the services in the Offer Details subscribed to by Subscriber in a subscription order.
1.16 SLA means any commitments we make regarding delivery or performance of a Service communicated as part of the Offer Details.
1.17 Spam means bulk or unsolicited commercial email.
1.18 Subscriber means the party authorised to subscribe to or administer an account for a Publische Service.
1.19 Term means the Subscription period ordered by Subscriber in the Offer Details.
1.20 Trade Marks means Publische’s registered trade marks PUBLISCHE, the PUBLISCHE logo, and the PUBLISCHE electronic pen device.
1.21 Trial Software means a software product that is provided by Publische to Subscriber free of charge for Subscriber’s internal use for trial, evaluation, testing or similar non-production purposes, and is expressly identified by Publische as free, as evaluation software, as Not For Resale or NFR software, or any similar designation.
1.22 Trial Software Term means a seven-day period of time that commences when Subscriber receives the applicable Trial Software.
2 Standard Version (applies to Commercial Software, rather than Trial Software)
Subject to the terms and conditions of this EULA and the Offer Details, Publische hereby grants Subscriber a limited, non-exclusive, non-transferable, non-sublicensable license to:
(a) access or install, copy and use the Commercial Software for the Services during the Term in accordance with the Offer Details.
(b) use and make calls to the Licensed Software to develop, implement, and distribute applications solely for use by Subscribers and End Users in connection with the Services;
(c) use, reproduce, distribute, and transmit Account Data to the extent necessary for applications to interoperate with the Services in accordance with this EULA; and
(d) use and display the Trade Marks only to identify that the Account Data originates from the Services.
(e) not install or use the Commercial Software outside of the scope of Services on the order.
(f) not grant access to or transfer the use of the Commercial Software to any third party, whether on a stand-alone basis or as integrated into any other product, except with respect to third party consultants and service providers providing services to Subscriber.
Subscriber agrees that Publische may charge to the credit card or other payment modality selected by Subscriber and approved by Publische all amounts due and owing for the subscription to Licensed Products and Services, including taxes and service fees, set up fees, subscription fees in accordance with Offer Details, fees for a Renewal Term, or any other fee or charge associated with Subscriber’s subscription.
Subscriber shall establish and maintain complete and accurate records related to the location, access and use of the Commercial Software by Subscriber, its employees or its agents, and any such other information as reasonably necessary for Publische to verify compliance with the terms of this EULA. Such records shall be kept for at least 3 years following the end of the applicable quarter of use.
3 Trial Software (applies to Trial Software, rather than the Commercial Software)
3.1 Trial License
Subject to the terms of this EULA and the Offer Details, Publische hereby grants Subscriber a limited, non-exclusive, non-transferable, non-sublicensable license to install, copy and use the Trial Software internally for trial, evaluation, testing, Internal Use or similar non-production purposes during the Trial Software Term, subject to the use and time limitations specified by Publische, whether expressly or through the configuration of a Key. Subscriber may not grant access to or transfer the use of the Trial Software to any third party, whether on a stand-alone basis or as integrated into any other product. If Subscriber decides to use the Trial Software after the Trial Software Term, Subscriber must obtain a license subscription for Services to use the Commercial Software. If Subscriber decides not to obtain a subscription for Services to use Commercial Software after the Trial Software Term, Subscriber will cease using and will delete any such Trial Software from its computer systems.
3.2 Termination of Trial Licence
You can use a Trial Licence only once. When the Trial Licence expires, you cannot restart the trial.
When a trial ends, Trial Licence features immediately become unavailable. However, data or configurations associated with the disabled functions are not deleted, and become available again once you install a Publische Commercial License.
Publische retains an unfettered discretion to revoke and terminate this EULA without notice to Licensee for any reason.
Either party may terminate the Trial Software license granted in Section 3.1 for convenience upon 30 days notice.
3.3 No Support
Subscriber acknowledges that Publische is not obliged to provide any support, maintenance, updates or upgrades for and in connection with the Trial Software.
3.4 Control over the Publische Services
Publische may limit or suspend Subscriber’s usage of or access to the Licensed Products if, in Publische’s reasonable discretion, Subscriber or Subscribers applications are adversely affecting the performance or operation of the Services. Publische shall use commercially reasonable efforts to provide notice to Subscriber of any such actions as soon as reasonably practical.
3.5 Modifications to the Commercial Software
Publische may modify or change the Commercial Software at its sole discretion at any time and will use commercially reasonable efforts to provide prior notice to Subscriber of any such actions as soon as reasonably practical. Publische shall have no liability of any kind to Subscriber or any End User flowing from any adverse effects resulting from such changes to the Commercial Software.
The following provisions of this EULA shall apply to all Licensed Products.
4 Keys and Data Collection Notice
4.1 License Keys
Subscriber shall not destroy, disable or circumvent, or attempt to destroy, disable or circumvent in any way the Key and/or the use and time limitations set by the Key or any Licensed Products. Subscriber acknowledges and agrees that any attempt to exceed the use of the Licensed Products beyond the limits configured into the Key will automatically and immediately terminate the licenses granted under this EULA.
4.2 Information Collection
The Licensed Products may contain functionality that automatically collect information concerning the use and configuration of the Commercial Software and transmit that information to Publische. The Licensed Products will not access, collect, store or transmit any personally identifiable information or business data files residing in your computer environment as part of this functionality. Data collection by the Licensed Products is strictly limited to only what is needed to deliver the Service. Third parties are forbidden from using shared data for any profiling, targeting, or other behavior not directly connected to providing the Service. Subscriber has the ability to configure the Licensed Products to turn off the transmission of such information to Publische. Publische may use the information transmitted by the Licensed Products for activities such as determining usage for billing and license compliance and helping improve upon and market its product and service offerings. Publische may retain this information in perpetuity.
5 Open Source Software
The Licensed Products may incorporate or be provided together with Open Source Software. Copyrights and other proprietary rights to the Open Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files. All Open Source Software is distributed to Subscriber under the terms of the applicable open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files.
Subscriber hereby assigns to Publische all right, title, and interest in and to the Feedback, if any.
7 Open Source Components
Publische Licensed Products contain or rely on licensed third-party software, which means that copyrighted, patented, or otherwise legally protected software of third parties is incorporated into the Publische Licensed Products.
To the extent the Licensed Products include open source licenses, the terms of such licenses shall prevail over this EULA with respect to the particular open source component. To the extent Licensed Products includes the Apache License 2.0: (a) the software includes a copy of the source code; or (b) if you downloaded the software from a website, a copy of the source code is available on the same website; or (c) if you send Publische written notice, Publische will send you a copy of the source code of the Trial Software for a reasonable fee.
Any documentation that includes open source code, including but not limited to, open source code examples, Publische makes available to you under the terms of the Apache License, Version 2.0, including any required notices. A copy of the Apache License Version 2.0 can be found at https://www.apache.org/licenses/LICENSE-2.0
8. Subscriber responsibilities
8.1 Subscriber acknowledges and agrees that Publische has no obligations, responsibilities, or liabilities to End Users who are not Subscribers to the Licensed Products nor to applications developers who develop, operate, sell, support or maintain apps designed to interact with the Licensed Products.
8.2 Subscriber is responsible for all End Users. If an End User is not a Subscriber, Subscriber should direct each End User to register with Publischer when inviting End User to access and use the Licensed Products if Subscriber prefers the name of End User to appear during use of the Licensed Products.
8.4 Subscriber shall not aid, abet, counsel or procure an End User to violate this EULA.
8.5 A high-speed Internet connection is required for proper transmission of the Services. Publische assumes no responsibility for the reliability or performance of any network connections, computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Publische that connect Subscriber or End Users to the Services and even then only to the extent of any SLAs agreed within the Subscription.
8.6 Subscriber agrees that Publische may develop and publish applications that are similar to or otherwise compete with Subscriber’s applications, and in the event Publische publishes a competing proprietary application, may require removal of Subscriber’s application and that Subscriber shall not compete with or substantially replicate proprietary products or services or functionality offered by Publische, including, without limitation, functions or clients on platforms where Publische offers its own client or a substantially similar function. Nothing in this provision derogates from Subscriber’s right to use alternative commercial or open source software applications.
8.7 Subscriber may not use or access the Licensed Products or the Services in order to monitor the availability, performance, or functionality of the Licensed Products or Services or for any similar benchmarking or competitive purposes.
8.8 Subscriber shall not authorise or display any form of advertising that uses Account Data.
8.9 Subscriber shall not republish, repackage, rent, resell, lease, loan, transfer, sub-licence or host the Licensed Product or Services, the Licensed Products, or Account Data, or any portion of these, to or for third parties except as expressly permitted in this EULA or operate the Licensed Product as a bureau service.
8.10 Licensee shall not modify, disable any features, tamper with functionality or security controls, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms, reverse engineer, decompile, disassemble, derive source code, underlying ideas, algorithms, structure, or organisational form from the Services or the Licensed Software, or work around technical limitations in the Licensed Product, except to the extent applicable law permits it despite these limitations, or make changes to the Licensed Software code to circumvent the functionality set out in the Offer Details, or otherwise attempt to circumvent any billing mechanism that meters use of the Services.
8.11 Subscriber is not permitted to use the Licensed Products, Services, or Account Data in any manner that does or could potentially undermine the security or performance of the Service, the Account Data, or the Services.
8.12 In the event Subscriber upgrades during the Term to Services set out in another Offer Details, this EULA shall terminate and the new Offer Details under the Publische EULA terms current at that time shall apply.
8.13 Custom license tiers are not available for purchase and Subscriber cannot combine Offer Details to create custom license tiers (e.g., a 3 user license and a 75 user license will not produce a 78 user license).
8.14 The Renewal Term shall commence automatically following an elapsed Term unless either party provides notice of termination at least thirty (30) days prior to the commencement of the upcoming Renewal Term.
8.15 Termination does not relieve Subscriber of the obligation to pay any fees payable to Publische for the period prior to the effective date of termination nor to apply any refunds or credits.
9. Trade Marks
PUBLISCHE, the PUBLISCHE logo and the PUBLISCHE electronic pen device any other product or service names, slogans, graphics, logos, page headers, button icons and scripts contained in or used with the Licensed Products, except as otherwise noted, are trade marks or trade dress of Publische. Publische’s trade marks and trade dress may not be used in connection with any product or service that is not Publische’s, in any manner that is likely to cause confusion among Subscribers, or in any manner that disparages or seeks to discredit Publische.
JITSI, the Jitsi Logo, Apache, Avro, Bigtop, Crunch. Flume, Hadoop, HBase, Hive, Kafka, Kudu, Lucene, Mahout. Oozie, Parquet, Pig, Sentry, Solr, Spark, Sqoop, Impala, and ZooKeeper are registered trademarks or trademarks of the Apache Software Foundation.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Publische.
10. Account Data and Admin Rights
10.1 If you are representing yourself or Subscriber is a sole trader, Account Data of a Subscriber may be accessed by that Subscriber in relation to the Services used on its own subscription.
10.2 Subscriber is solely responsible for the content of and access to Subscribers Account Data. If Subscriber is representing an organisation, or if Subscriber is the first user signing up to the Services representing a company, firm, group of co-workers or business partners, that legal entity is the Subscriber entering into this agreement, and you represent you have the authority to do so on its or their behalf. When Subscriber invites an individual to use the Licensed Product, or when an End User that Subscriber has invited invites a new End User, Subscriber is taking additional responsibilities with respect to the use of the Licensed Product by that End User. As such, Subscriber’s provision of the Licensed Product to End User remains subject to this EULA, including the ownership and management of Account Data by your affiliated organisation or entity. For example, the entity Subscriber signed up for may control the processing of Account Data, and provide authorisation to Publische to process Account Data, and instructions on processing the Account Data to Publische. Subscriber’s instructions may include access, control, use, and deletion of Account Data, and Subscriber remains responsible to all obligations under this EULA. Further, Subscriber (i) controls and administers your account and that of End Users, including modifying and terminating access, and (ii) Subscriber may access and process your Account Data, and that of End Users, included contents of communications and files.
10.3 Subscriber agrees that End Users may also submit requests regarding administrative operations of their account, such as deletion, access, and control of Account Data, provision and deprovisioning access to the Licensed Product, manage teams and channels, and manage access permissions. Any administrative and representative function exercised by you on behalf of a Subscriber organisation may be transferred and re-assigned to another individual at the organisation’s request. You agree to take any actions reasonably requested by Publische to facilitate the transfer of administrative function or representation to another individual in accordance with such request. That may include providing data breach notifications to End Users within 72 hours of receiving knowledge of a security breach of Account Data. If you chose to upgrade to a paid Subscription, or upgrade the Offer Details, all payment terms in this EULA and the Offer Details will then apply. Furthermore, at the time of upgrade, you shall select a single domain associated with the organisation to be used for all End User accounts.
10.4 If you use an email address provided by an organisation you are affiliated with (such as a workplace or school) to order a Service individually, you represent that you have authority to use that organisation’s domain to sign up for a Subscription in your capacity as a member of that organisation. Subscriber agrees that the organisation, as the owner of the domain associated with your email address, may assume control over and manage your use of the Services. In such a case, your organisation’s designated administrator may (a) control and administer your Subscription and Account Data, including modifying and terminating your access and (b) access and process your Account Data, including the contents of your communications and files. Publische may inform you that your organisation has assumed control of the Services covered by your Subscription, and Publische is under no obligation to provide such notice. If your organisation is administering your use of the Services or managing any hosting associated with the Licensed Product the subject of your Subscription, Subscriber agrees to direct any enquiries in relation to Account Data and privacy to your administrator. Subscriber also agrees to provide any End User hosted by Subscriber with contact information for an administrator of the Service at your organisation, workplace or school upon request by such End User. If your organisation is not administering your use of the Service or managing such hosting, direct your Account Data subject requests and privacy inquiries to Publische.
10.5 If a Subscriber or End User’s email address contains the same domain name as others who use your organisation’s domain, Publischer is authorised to add your email address to a directory that may be visible to people that share the same domain name as Subscriber or End User.
10.6 Subscriber agrees that meeting hosts or system administrators will not use any surveillance-like features (such as attention tracking, accessing or downloading chat messages between participants) without clear notice to participants before using the Service, or as the tracking is enabled.
11. Publische may immediately terminate this EULA if Subscriber does not comply with any term of this EULA.
11.2 Termination of a subscription shall be effective on the last day of the Term or Renewal Term.
11.3 Upon termination Subscriber must cease any further use of the Licensed Products or Services.
11.4 If at any time Subscriber is not happy with the Services, subject to any statutory warranties, Subscriber’s sole remedy is to cease to use the Licensed Products or Services and must follow this termination process.
The Trial Software is provided “as-is” and without warranty. Subscriber acknowledges and agrees that the Trial Software is not suitable for any purpose other than limited internal trial and evaluation. To the fullest extent allowed by law, Publische and its licensors and suppliers specifically disclaim all warranties, whether implied, statutory or otherwise, including the warranties of merchantability, non-infringement, title, fitness for a particular purpose or satisfactory quality, and any and all warranties arising from course of dealing or usage in trade of the Trial Software. No advice or information, whether oral or written, obtained from Publische or elsewhere shall create any warranty not expressly stated in this EULA.
Publische and its licensors and suppliers do not warrant that the Licensed Software will operate without error or interruption. Subscriber assumes all responsibility for the selection of the Licensed Software or a specific version or part thereof to achieve Subscriber’s intended results, and for the operation, use and results of the Licensed Software. The Licensed Software 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.
Other than the warranty in clause 13, we provide 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 clause 14).
13.1 For Licensed Products and Services the subject of a paid Subscription (not the Trial Software) Publische warrants that (a) the Services will meet the terms of any applicable SLA agreed at the time of ordering a Subscription during the Term specifically mentioned in the Offer Details. Your only remedies for breach of this warranty are those in the applicable SLA mentioned in the Offer Details, if any; (b) for one year from the date you first use the Licensed Software that it will perform substantially as described in the applicable user documentation. If the Licensed Products fail to meet this warranty we will, at our option and as your exclusive remedy, either (i) return the price paid for the Software or (ii) repair or replace the Licensed Software.
13.2 The limited warranty in clause 13.1 is subject to the following limitations:
(a) 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; (b) this limited warranty does not cover problems caused by accident, abuse or use of the Licensed Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control; (c) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and (d) this limited warranty does not apply to Trial Software.
14. Australian Consumers
If you acquired the software as a consumer 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:
14.1 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 Publische fails to comply with any such statutory consumer guarantee, Publische’s liability is limited to the following:
(a) in connection with the provision of warranty and support services for the software, to any one or more of the following (at Publische’s discretion): (i) the supplying of the services again; or (ii) the payment of the costs of having the services supplied again; and
(b) in connection with the provision of the software, to any one or more of the following (at Publische’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
(c) otherwise, is excluded to the maximum extent permitted by law.
14.2 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
14.3 The benefits provided to you by the warranties in this EULA are in addition to other rights and remedies available to you under a law in relation to the goods or services to which the warranty relates.
14.4 The Licensed Products may be capable of retaining user-generated data. Publische hereby provides you with notice that if Publische repairs, upgrades or changes the Licensed Product, that repair, upgrade or change may result in the loss of that data. To the fullest extent permitted by law, the limitations and exclusions of Publische’s liability in this EULA apply in respect of any such loss of data.
15. Limitation of liability
The aggregate liability of each party for all claims under this EULA is limited to direct damages up to the amount paid under this agreement for the Service during the 12 months before the cause of action arose; provided, that in no event will a party’s aggregate liability for any Service exceed the amount paid for that Service during the elapsed Subscription period. For Licensed Products provided free of charge, Publische not liable for any direct damages under any circumstances and all such risk is accepted by Subscriber and End Users.
Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, howsoever caused even through negligence and even if the party knew or ought to have known they were possible or reasonably foreseeable.
Save as required by applicable law, the limits of liability in this clause do not apply to: (a) the parties’ obligations under clause 14; or (b) violation of the other’s intellectual property rights.
If you think that you are entitled to any warranty or claim under this EULA or any of the above remedies, notices to Publische must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier confirmation of delivery. Notices to Publische must be sent to the following address:
Publische Pty Ltd
Level 4, 90 William Street,
Melbourne, Victoria, 3000
Notices and other information will be sent to Subscriber by email or other electronic form to the address that you identify on your account as your contact for notices.
To initiate a support request or warranty claim, please email email@example.com or visit www.publische.com for the most current list of phone support numbers.
17. Force Majeure
Except for Subscriber’s payment obligations under this EULA, 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 Services).
18. Applicable law and venue
This agreement is governed by the laws of the State of Victoria in Australia, without regard to its conflict of laws principles, except that (i) if you are a U.S. Government entity, this agreement is governed by the laws of the United States, and (ii) if you are a state or local government entity in the United States, this agreement is governed by the laws of that state. Any action to enforce this agreement must be brought in the State of Victoria in Australia. 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.
19. Entire agreement
This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this Publische EULA, (2) the Services order, (3) any applicable offer details, and (4) any other documents referred to in this EULA.