Benchmarking Prism End User Licence Agreement

Benchmarking Prism is a solution that provides you with access to benchmarking reports and any other research, analysis or information as set out on our website, which may assist you with your internal business purposes. By accessing or using the Benchmarking Prism solution, and the content and materials contained therein (the Solution), you agree to the following terms of this end user licence agreement (EULA). Please read these terms and conditions carefully before using the Solution.

  1. The term “we” or “us” refers to Deloitte Solutions Pty Limited (Deloitte) and our Related Entities (as that term is defined in the Corporations Act 2001 (Cth), affiliates and assigns. The term “you” refers to the user of the Solution or those users who you authorise to make use of the Solution (Authorised Users). You are responsible for adding or removing Authorised Users to or from your account and for ensuring that you take appropriate security measures to protect access to the Solution, including by protecting and administering access to username and password details as well as only allowing access by authorised users. You are also responsible for updating any user information. In addition, you are solely responsible for, among other things the performance of your Authorised Users, and the accuracy and completeness of all data and information provided to Deloitte for the purposes of providing you with the Solution, an maintaining all software, hardware and other equipment used by you to access and use the Solution.
  2. You shall cooperate with Deloitte in its provision of the Solution to you, including (i) making all management decisions, performing all management functions and assuming all management responsibilities; and (ii) evaluating the adequacy and results derived from the Solution and accepting responsibility for such results. Our performance is dependent on your timely and effective satisfaction of your responsibilities under this EULA, and your timely decisions and approvals in connection therewith.
  3. Subject to your payment to Deloitte of the applicable fees, you are granted a non-transferable, limited, non-exclusive, revocable, licence to access and use the Solution, including any Third Party Material, where applicable. You and your Authorised Users may only use the Solution for your internal business purposes and must not (i) distribute, rebrand, market, relicense, sublicense, rent, lease, assign, re-package, license, sell, adapt, translate, enhance, copy, modify, decompile, disassemble, reverse engineer or translate of the whole or any part of the Solution; (ii) merge the Solution into any other platform or Solution or port any content from the Solution to any other platform or Solution; (iii) create derivative works based on the Solution; (iv) duplicate, sell or reproduce any of the content available through the Solution, or any portion thereof, except as permitted in the applicable licence grant set forth above; (v) use the Solution or any content contained therein in any way that is fraudulent or violates applicable law, rule or regulation or interferes with or disrupts other network users, network services, or network equipment, including but not limited to spamming; (vi) develop, licence, sublicence or otherwise make available any product or service that mimics, duplicates or competes with the features and/or functionality of the Solution. Third Party Material means data, databases, information, computer software and other materials which are owned by Deloitte Consulting LLP or such third party supplier as may be specified from time to time (Third Party Supplier) and sublicensed to you pursuant to this EULA, and where the context requires, includes copies of the Third Party Material and any modifications or updates to the Third Party Material.
  4. You must ensure that at all times the Third Party Material contains any copyright notices or disclaimers that were affixed to the Third Party Material by us or by the Third Party Supplier. You acknowledge that (i) we do not warrant the accuracy of the data and/or software produced by a Third Party Supplier; (ii) as a condition of the supply by us of Third Party Material to you, the Third Party Supplier disclaims all warranties that they are permitted by law to disclaim in relation to the Third Party Material supplied by them and makes no representations as to the state, quality, condition, accuracy or completeness of the Third Party Material and that they are not under any liability to you for any loss or damage (including consequential loss or damage suffered by any person arising from your use of the Third Party Materials); (iii) you will advise us if you discover any errors in the Third Party Materials; (iv) you are a sub-licensee of the Third Party Supplier. You agree to comply with any reasonable direction given by us or the Third Party Supplier related to your use of the Third Party Material including, where applicable, complying with any future legislation and/or government policy which imposes binding restrictions or limitations relating to the supply of Third party Material; (v) You are responsible for yours and your Authorised Users’ compliance with the terms of any Third Party Supplier terms relating to your use of the Third Party Materials. We will provide these to you upon request; and (vi) the Third Party Supplier is, to the extent permitted by the Law of any relevant jurisdiction, an intended third-party beneficiary of, and entitled to enforce, this EULA in its own right.
  5. Subject to any promotional offers or as otherwise agreed with us in writing, we will charge you a fee of $4,999.00 for a six month subscription, payable by you upon your purchase of the Solution (Licence Fee). Unless otherwise stated on the Solutions by Deloitte website, the Licence Fee includes GST. You agree to pay any GST imposed on us, now or in the future in relation to this Agreement. You are responsible for any taxes imposed in connection with this Agreement, other than taxes imposed by employment withholding for Deloitte’s personnel or on our income or property.
  6. In consideration for the Licence Fee, we shall provide support to you in the operation of the Solution via telephone or email during normal business hours (9am – 5pm in Victoria) excluding weekends and Victorian public holidays, provided that you (or your representative) has undertaken training in the use of the Solution from us or another trainer as agreed between us. If we have agreed, we will provide training in the use of the Solutions for the number of days agreed.
  7. You acknowledge and agree that neither the Solution nor the content contained therein constitute professional, accounting, tax or legal advice of any kind and do not consider your specific objectives, situation or needs. You further acknowledge and agree that you should not rely on the Solution or the information contained within the Solution. You are responsible for any decisions that you make as a result of your use of the Solution. To the extent permitted at law, Deloitte accepts no duty of care or liability to anyone regarding the Solution or its contents.
  8. Any rights not expressly granted in this EULA are reserved by Deloitte and all implied licences are disclaimed.
  9. You confirm that you have, or have made necessary arrangements to have in place suitable hardware, software and access to the internet to enable you to use the Solution. You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Solution or the Solution itself. You agree not to interfere with the servers or networks underlying or connected to the Solution or to violate any of the procedures, policies or regulations of networks connected to the Solution. You many not access the Solution in an unauthorised manner.
  10. You are responsible for complying with all applicable laws in relation to your use of, or access to, the Solution. You agree not to impersonate any other person while using the Solution, conduct yourself in an offensive manner while using the Solution, or use the Solution for any illegal, immoral or harmful purpose.
  11. By breaching the provisions of this EULA, you may commit a criminal offence under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Solution will cease immediately.
  12. All materials (including logos, company names, trademarks, images, software and content whether downloaded or not and any updates or amendments to those materials) (Materials) contained in the Solution are owned by Deloitte (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the Materials are valuable property and that, other than any licence granted to you in this EULA, you shall not acquire any ownership rights in or to such Materials. The Materials may not be used except as provided for in this EULA and in any other agreement you execute with Deloitte or one of our authorised third party distributors of the Solution. You must ensure that you, and your Authorised Users, understand that that (i) any data or information provided by any of you when using the Solution (Results) may be used by Deloitte in connection with benchmarking studies or analyses that it conducts from time to time, or in connection with services provided by Deloitte or otherwise; (ii) the Results are the proprietary information of Deloitte; (iii) any Results may be disclosed by Deloitte to related entities or other third parties, including, without limitation, in publications, in connection with the particular study in which you are participating (Study) or other studies, analyses or services, provided that any data or information included by Deloitte does not contain any information that identifies you or associates you with the responses that you have provided. If you do not wish for your Results to be used by Deloitte in accordance with these terms, you must provide a written confirmation to that effect to benchmarkingprismsupport@deloitte.com.au; (iv) any disclosure of such data or information may be required by law, in which case Deloitte will endeavour to notify you; (v) your company’s name will be listed among the participants in the Study and only in Deloitte’s Study publications, website, promotional materials and other forms of advertising in connection with the Study. No such use of your company’s name will state that your company endorses or recommends Deloitte or the Study, and in each instance, Deloitte will list the participants in the study alphabetically in a manner no more or less prominent than any of the other participants; and (vi) Deloitte is not, by means of this Study or the Study results, rendering professional advice or services to you or your company. Neither this Study nor the results is a substitute for such professional advice or services. Deloitte is not responsible for any loss sustained by any person who relies on this study or the Study results; (vii) You and/or your Authorised Users are authorised to complete this Study on behalf of your company and to receive the Study results, including, without limitation, in accordance with the policies of your company, its board of directors (or similar governing body), and, if applicable, its audit committee.
  13. Your name will always be listed among the other participants in the relevant program (Program) and only in ours or our affiliates’ study publications, news releases, articles, website promotional materials, direct mail solicitations, brochures and other forms of advertising in connection with the Program. No such use of your name will state that you endorse or recommend Deloitte or the Program and in each instance Deloitte will list the participants in the Program alphabetically in a manner no more or less prominent than any of the other participants.
  14. Each of us agrees to protect and keep confidential any Confidential Information that is given to us by the other. You acknowledge that we may provide certain Confidential Information to our third party service providers. However we will remain primarily liable for any use or disclosure of such Confidential Information by those third parties. Each of us also acknowledges that the terms of the Deloitte Privacy Policy will apply to your use of the Solution. The Deloitte Privacy Policy can be accessed here: http://www.deloitte.com/view/en_AU/au/privacy/index.htm. You further acknowledge that, to the extent of any inconsistency between this EULA and the Deloitte Privacy Policy, the terms of this EULA will prevail. Confidential Information means any information or material that is proprietary to or deemed to be proprietary to either party and is disclosed to the other party further to us providing you with the right to access and use the Solution in accordance with this EULA. For the avoidance of doubt, the Solution and any Third Party Material are each considered Confidential Information of ours.
  15. THE SOLUTION IS PROVIDED TO YOU ON AN ‘AS IS’ BASIS AND TO the extent permitted BY APPLICABLE law, all terms, conditions, wArranties, undertakings, inducements or representations on any basis (including negligence) whether express, implied, statutory or otherwise relating in any way to the Solution are excluded BY DELOITTE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OF RESPONSES. without limiting the foregoing, any liability under any condition, warrantY or representation that by law cannot be excluded is, where permitted by law, at our option, to repair or replace the Solution. to the extent permitted by law (A) all OF our liability is excluded in respect of any indirect or consequential loss incurred by you, in relation to the Solution and in any event for any loss of income or lost or corrupted data; AND (B) we will not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from any errors in or omissions from the soution or any materials beyond our reasonable control, the unavailability or interruption to the supply of the solution, your use or misuse of the soution or materals (regardless of whether you hav received any assistAnce from us in using or misusing the solution), the content of your materials, loss or damage to your materials, your use of any equipment in connection with the solution or any delay or failure in performacne beyond our reasonable control. IN ALL OTHER MATTERS, DELOITTE SHALL BE LOABLE TO YOU FOR ANY CLAIMS, LIABILITIES OR EXPENSES RELATING TO THIS EULA UP TO AN AGGREGATE AMOUNT EQUAL TO THE FEES PAID BY YOU TO US FOR THE SOLUTION IN THE 12 MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE INITIAL ACT OR OMISSION GIVING RISE TO THE LIABLITY FIRST occurred.
  16. You indemnify, defend and hold Deloitte, the Third Party Supplier its successors and permitted assigns (those indemnified) harmless of and from any damage, loss, cost or expense or any other liability of every nature, kind and description whatsoever (including, without limitation, consequential loss and reasonable attorneys’ fees and expenses) incurred or suffered by those indemnified, by reason of or resulting from or arising out of any claims arising from yours, or your Authorised Users’, use of the Solution, including any third party claims that arises as a result of a third party alleging infringement of the Intellectual Property Rights which arise from the use of the Third Party Materials in a manner or for a purpose not reasonably contemplated or not authorised by us or a Third Party Supplier.
  17. If Deloitte believes, in its sole discretion, that the Solution, or any part thereof, has become the subject of a claim of infringement, Deloitte, at its option and expense, may: (i) procure the right for you to continue to use the Solution; (ii) replace or modify the Solution so as to make it non-infringing; or (iii) discontinue the licence granted herein. The foregoing states the entire liability of Deloitte with respect to infringement of any copyrights, patent, licence or other property right by the Solution or any parts thereof.
  18. This EULA shall commence on the date on which you first access purchase the Solution and shall continue until terminated in accordance with its terms. Your right to use the Solution shall terminate if (a) your agreement with Deloitte to use the Solution expires or terminates; (b) you fail to comply with any of the material terms or conditions of this EULA, or the Deloitte Privacy Policy and do not cure such failure in a reasonable period of time after becoming aware of such non-compliance; (c) you have any type of insolvency administrator appointed in respect of your property or affairs; or (d) you enter into any scheme, composition or arrangement with any of your creditors. Within five (5) business days of the expiration or termination of this EULA, you shall immediately discontinue all use of the Solution in whole or in part.
  19. Either of us may terminate this EULA at any time by giving the other 30 days’ prior written notice, or immediately if the other commits any material breach of this EULA that is either incapable of being remedied or is not remedied within 14 days of receipt of a notice requiring the breach to be remedied. We may terminate this EULA immediately if we identify circumstances that could cause us to have a conflict of interest.
  20. This EULA and the Deloitte Privacy Policy may be amended by us from time to time and by continuing to use the Solution, you agree to comply with those terms, as they are amended from time to time.
  21. We may assign the benefits of this EULA at our discretion.
  22. Your use of the Solution and this EULA are governed by the laws of New South Wales, Australia.
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