Appellon Program Suite - Terms of Use – Appellon

1. FORMING A BINDING AGREEMENT

(a) Your employer or the company or organisation to whom you provide services (“Client”) is a

customer of PULSE AUSTRALASIA PTY LTD (ACN 154 929 450) (“Appellon”) and has arranged for

you to have access to one or more of the programs in the Appellon Program Suite which

establish organisational mindsets that are focussed on achievement and connection, and

increases well-being, quality of work life experience and performance outcomes.

(b) This document sets out the terms (“Terms of Use”) of the licence that Appellon is granting you to enable you to use one or more of the programs in the Appellon Program Suite.

your password and set your email. Your access will be de-activated if you do not confirm your

email address and validate your password within ninety days of the date on which you are first

invited to do so.

(d) An email address provided by you must be provided specifically for use with one or more of the

programs in the Appellon Program Suite.

(e) In order to proceed you must review and accept these Terms of Use by clicking on the “I have

read and accept the Terms of Use” checkbox.

(f) By accepting the Terms of Use you are also promising to Appellon that all of the information that

you provide about yourself is true and correct. You understand that in giving you access to one or

more of the Programs in the Appellon Program Suite, Appellon is relying on this information.

(g) You agree that your use of the programs in the Appellon Program Suite is subject to these Terms

of Use. If you do not agree to these Terms of Use, you must not use any of the programs in the

Appellon Program Suite.

(h) Any use of a program in the Appellon Program Suite will constitute evidence that you have read,

understood and agreed to be bound by these Terms of Use.

(i) Appellon reserves the right to amend, vary, modify and/or replace these Terms of Use at any time,

and from time to time, and such amendment, variation, modification and/or replacement shall be

effective immediately upon posting to the Appellon Website. Your continued use of any program

in the Appellon Program Suite shall be deemed to be your acceptance of any amendments to

these Terms of Use.

2. DEFINITIONS AND INTERPRETATION

2.1 Definitions

In these Terms of Use, unless the context requires otherwise:

"Appellon Client Programs" means the programs within the Appellon Program Suite that the Client

currently holds subscriptions for and which the Client has provided you with access to;

"Appellon Program Suite” means the suite of programs provided by Appellon from time to time and

includes:

(a) the Work-Rite Program;

(b) the Lead-Rite Program; and

"Appellon Website” means the URL appellon.com (or any other domain or sub-domain used by

Appellon from time-to-time);

"Business Day" means a day that is not a Saturday, Sunday or is the Easter public holiday, Christmas

Day, Boxing Day or New Year’s Day.

"Care-Rite Program” means taking the program which measures the psychological, emotional and

spiritual wellbeing of aged care clients and residents.

"Confidential Information" means all of the information that is not in the public domain that relates

to the Appellon Program Suite and the insights that are provided by the Appellon Program Suite.

“Content” means any information, guides, assessments and other tools or materials that are provided

on the Appellon Client Programs.

"Corporations Act" means the Corporations Act 2001 (Cth).

"Documentation" means the documentation provided in connection with an Appellon Client

Program which describes the specifications for that Appellon Client Program.

"Intellectual Property Rights" means all intellectual and industrial property rights of whatever

nature (whether or not registered or registrable) including, but not limited to:

(a) patents, copyrights, designs, trademarks, trade secrets, drawings, inventions, discoveries, research

developments;

(b) any application or right to apply for registration of any of the rights in paragraph ‎(a) and all

renewals and extensions of those rights; and

"Lead-Rite Program" means the leadership program provided by Appellon to enable a Client to

apply wiser leadership behaviours and enshrine principles aimed at engaging the hearts and minds of

all staff with a view to improving performance outcomes.

"Loss" means any debt or other monetary liability or penalty, fine or payment or any damages, losses,

costs, charges, outgoings, or expenses of whatever description.

"Purpose":

(a) with respect to the Work-Rite Program, means to boost wellbeing, improve workplace experience

and focus on what performance goals count most ; and

(b) with respect to the Lead-Rite Program, means to measure the degree that leaders are applying

wiser leadership behaviours and to enshrine principles aimed at making decisions for the greater good and engaging the hearts and minds of all staff; and

spiritual wellbeing of clients and residents in the aged care sector.

"Related Body Corporate" has the meaning given to that term by section 9 of the Corporations Act.

"Term" means the period that you have access to any Appellon Client Program.

"Third Party Products" means services, products and/or Content provided by third parties.

"Work-Rite Program” means the workforce program provided by Appellon to boost wellbeing,

quality of work life experience and performance outcomes.

2.2 Words and expressions

In these Terms of Use, unless the context requires otherwise:

(a) the singular includes the plural and vice versa;

(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning

(d) a reference to any document or agreement includes a reference to that document or agreement

as amended, novated, supplemented, varied or replaced from time to time;

(e) a reference to a party includes its executors, administrators, successors, substitutes (including

persons taking by novation) and permitted assigns;

(f) words and expressions denoting natural persons include bodies corporate, partnerships,

associations, firms, governments and governmental authorities and agencies and vice versa;

(g) a reference to any legislation or to any provision of any legislation includes any modification or

re-enactment of the legislation; any legislative provision substituted for, and all legislation,

statutory instruments and regulations issued under, the legislation or provision; and where

relevant, corresponding legislation in any Australian State or Territory;

(h) no rule of construction applies to the disadvantage of a party because that party was responsible

for the preparation of these Terms of Use or any part of it; and

(i) the words "including", "for example", "such as" or other similar expressions (in any form) are not

words of limitation.

3. ACCESS

3.1 Access

In consideration of the Client paying the Program Fees, Appellon grants to you non-exclusive and non-transferable access rights to use the Appellon Client Programs solely for the Purpose and solely for the Term, and on the terms and conditions set out in these Terms of Use.

3.2 Terms of Access

(a) Notwithstanding any other term of these Terms of Use, Appellon may (and hereby reserves the

right to) suspend your access to the Appellon Client Programs if you commit a material breach of

these Terms of Use.

(b) Appellon may suspend or limit access to the Appellon Client Programs from time to time for

modification, upgrading or maintenance of the Appellon Client Programs, by providing the Client

with reasonable notice.

You acknowledge and agree that you will:

(d) ensure that the Appellon Client Programs are used strictly in accordance with these Terms of Use

and strictly in compliance with all applicable laws and regulations; and

(e) make every reasonable effort to prevent unauthorised access to the Appellon Client Programs.

3.3 Control of the Appellon Client Programs

You acknowledge and agree that you will not:

(a) use the Appellon Client Programs for any purpose other than the Purpose;

(b) use the Appellon Client Programs, other than as provided in these Terms of Use;

(d) access or attempt to access the source code of or the data in the Appellon Client Programs;

(e) copy, reverse engineer, adapt, decompile, vary or modify the Appellon Client Programs;

(f) use the Appellon Client Programs to create, train, or improve (directly or indirectly) a substantially

similar product or service, including, without limitation any other content delivery or culture or

personal improvement platform or service;

(g) use the Client Programs to undertake any activities in relation to any information or materials

which breach any laws or regulations, infringe a third party's rights, or are contrary to any relevant

standard or code;

(h) knowingly transmit to the Appellon Client Programs or use the Appellon Client Programs to

transmit, any virus or other disabling feature;

(i) dispute Appellon's right to refuse you access to the Appellon Client Programs and will comply with

any request given by Appellon in that regard; nor

(j) attempt any of the above acts or permit another person to do any of the above acts.

3.4 Availability of Appellon Client Programs

(a) You understand and acknowledge that the Appellon Client Programs are provided on an “as is” \

and “as available” basis. While Appellon will use reasonable endeavours to provide the Appellon

Client Programs to you, you acknowledge that it may not be continuous or fault-free and may not

be available at all times. Events which are outside Appellon’s reasonable control may also affect

the Appellon Client Programs. The Appellon Client Programs may contain bugs, errors or

inaccuracies that could cause failures, corruption or loss of data and/or information from your

device, any of your devices and from peripherals (including without limitation, servers, computers,

tablets and smart phones) connected to your device or to any of your devices.

(b) You assume all risks and costs associated with your use of the Appellon Client Programs and any

internet access fees, including all data and roaming changes. In addition, Appellon is not obliged

to, and may not provide you with any maintenance, technical or other support for the Appellon

Client Programs.

4. CONTENT

4.1 Third Party Products

You acknowledge and agree that the ongoing operation of the Appellon Client Programs is dependent on third-party services, such as hosting services; email services; and analytics services.
You understand that certain components or features of the Appellon Client Programs may include Third Party Products.
You acknowledge and agree that Appellon is not responsible for the availability of any Third Party Products; does not endorse or warrant the accuracy of any Third Party Products; and shall in no way be liable for any loss or damage you incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of your use and/or reliance upon any Third Party Products.

4.2 Your use of the Appellon Client Programs

(a) You understand and agree that the insights that you derive from the Appellon Client Programs are

affected by the manner in which you choose to respond or fail to respond to the Appellon Client

Programs. You are solely responsible for the manner in which you respond or fail to respond to

the Appellon Client Programs or to the manner in which you choose to use or ignore any insights

generated by the Appellon Client Programs.

(b) You understand and agree that any data or insights that the Appellon Client Programs derives

from the manner in which you use the Appellon Client Programs will be available to Appellon to

provide you with access rights to the Appellon Client Programs; to use in order to provide you with

insights that you may use to improve the manner in which you assess and manage your feelings

and manage your reactions to what is happening around you; to fix any error in the Appellon

Client Programs; to upgrade, develop or improve the Appellon Client Programs; or to fix, upgrade,

develop or improve Appellon's other products or services, subject to the applicable provisions of

any relevant legislation including, without limitation, privacy legislation.

provided for convenience only and may not remain current or be maintained. Appellon is not

responsible for the content or privacy practices associated with third party service providers,

websites, or apps.

4.3 Disclaimer

(a) Appellon makes no representations or warranties to you regarding the suitability, performance,

merchantability or fitness for purpose or the results that you obtain by using the Appellon Client

Programs.

(b) Appellon will not be liable if you are unable to use the Appellon Client Programs due to any

incompatibility or fault or incorrect configuration of your equipment or an interference, network

congestion or outages on the network connecting you with the Appellon Client Programs.

is not received by you for any reason, including if you fail to include the email address (no-

reply@appellon.com) to your contact book and that email is then identified by your email service

as spam or junk.

(d) You acknowledge and agree that Appellon does not control the transfer of data over

communications facilities.

4.4 Exclusion of liability

To the maximum extent permitted by law, Appellon excludes liability for any consequential or indirect loss or damage (including by way of example, loss of profit, loss of opportunity, loss of goodwill, loss of business, damage to reputation, business interruption, loss or corruption of data and loss of privacy of communications) which may or does arise from your use of the Appellon Client Programs.

5. INTELLECTUAL PROPERTY

5.1 Intellectual Property rights

You acknowledge and agree that:

(a) Appellon (or its affiliates) owns or licences all of the Intellectual Property Rights in the Appellon

Client Programs, the systems, processes, content and background technology used to provide the

Appellon Client Programs and any data, information or materials related to or arising from the use

by you and your Users of the Appellon Client Programs;

(b) nothing in these Terms of Use gives you any proprietary right to the Appellon Client Programs and

its associated Intellectual Property Rights; and

connection with these Terms of Use will vest and be owned by Appellon (and you hereby assign to

Appellon all such existing and future Intellectual Property Rights).

6. CONFIDENTIALITY

6.1 Appellon's use of Confidential Information

Appellon may use any information that you provide when responding to the Appellon Client Programs to provide you with access rights; to fix any error in the Appellon Client Programs; to upgrade, develop or improve the Appellon Client Programs; or to fix, upgrade, develop or improve Appellon's other products or services, and Appellon may disclose any such information to any third party engaged by Appellon for one of more of those purposes. Appellon will use its reasonable efforts to ensure that such third party complies with obligations of confidence similar to those required by this clause ‎6.

6.2 Your use of Confidential Information

You must keep Appellon's Confidential Information confidential and must not disclose this information to any person except with the prior written consent of Appellon; to the extent required by law; or to any of your advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by you to keep the Confidential Information confidential.

6.3 Acknowledgment

You acknowledge and agree that:

(a) Appellon may suffer commercial or other loss and damage if its Confidential Information is used

by any third party, or disclosed or made available to any third party by you other than in

accordance with these Terms of Use;

(b) damages may be an inadequate remedy to protect Appellon’s interests if you breach the

provisions of this clause ‎6; and

you for breach of this clause ‎6.

7. PRIVACY

7.1 Privacy Policy

(a) Appellon maintains a privacy policy in compliance with the provisions of the Privacy Act 1989 (Cth)

for data that it collects about you (“Privacy Policy”).

(b) By using the Appellon Client Programs:

(i) you consent and agree to the collection, processing and use of personal data about you and

information about you from the manner in which you use or respond to or fail to respond to the

Appellon Client Programs which Appellon will use in accordance with the Privacy Policy, which is

incorporated into, and forms an integral part of these Terms of Use; and

(ii) you acknowledge that you accept and agree to be bound by the terms of the Privacy Policy.

(c) You acknowledge that you have read and understood Privacy Policy and agree that all personal information collected by Appellon is subject to the Privacy Policy.

7.2 Location data and cookies

The Appellon Client Programs may use location data and cookies to improve your experience while using the Appellon Client Programs, which also send browsing information back to Appellon Client Programs. By continuing to use the Appellon Client Programs, you consent to the use of location data and cookies.

8. FORCE MAJEURE

Appellon is not liable for any failure to perform or delay in performing its obligations under these Terms of Use if that failure is due to anything beyond Appellon's reasonable control.

9. TERMINATION

9.1 Termination

Your use of the Appellon Client Programs will terminate with immediate effect:

(a) if the agreement between Appellon and the Client is terminated for any reason; or

(b) if the Client terminates your access to the Appellon Client Programs.

10. GENERAL

10.1 Assignment

You must not assign, transfer, or otherwise deal with your rights to use the Appellon Client Programs without the prior written consent of Appellon.

10.2 Severability

Part or all of any provision of these Terms of Use that is illegal or unenforceable will be severed from these Terms of Use will not affect the continued operation of the remaining provisions of these Terms of Use.

10.3 Governing law and jurisdiction

These Terms of Use will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the exclusive jurisdiction of the courts of that State.

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