TERMS AND CONDITIONS

THIS AGREEMENT IS MADE BETWEEN:

Ellect Pty Ltd, Suite 204, 250 Pitt Street, Sydney, NSW 2000, Australia (“Ellect”);

AND:

You

for access to and the use of any of the Services.

BY SELECTING “I ACCEPT,” PAYING FOR OR USING ANY OF THE SERVICES, STARTING THE QUESTIONNAIRE, REQUESTING A USER TO COMPLETE A QUESTIONNAIRE, OR USING THE API, AND WHETHER OR NOT YOU HAVE PAID OR ARE PAYING A FEE FOR SUCH, YOU AGREE WITH THE FOLLOWING TERMS AND CONDITIONS, WHICH ARE BINDING ON ELLECT AND YOU:

1.1 Definitions

In this Agreement, unless the contrary intention appears:

Agreement: This agreement for the access to and use of the Services.

API: The Ellect application programming interface.

Coaching Services: Use of Ellect human coaching, the artificial intelligence (AI)-enabled automated coach named “CoachSue” and/or any other Ellect coaching services, including any other Ellect AI-enabled coach and whether in the Ellect App or via Zoom, Facebook Messenger, Microsoft Teams, or Slack.

Commencement Date: The date this Agreement becomes binding on the Parties as noted above.

Confidential Information: The confidential information of a Party related to the subject matter of this Agreement, including but not limited to:

  1. The design, specification, and content of the Services;
  2. The Questionnaire and its associated instructions;
  3. Personnel, policies, or business strategies;
  4. The terms of this Agreement;
  5. The API (which is not already in the public domain);
  6. The AI coaches, including that referred to as “CoachSue”; and
  7. Any algorithm and/or machine learning used by Ellect in provision of any of the Services.

Intellectual Property Rights: Copyright, trademark, design, patent, semiconductor, circuit layout, and any similar rights, whether registered or not.

Paid Account: The account set up for a Subscriber by Ellect where fees are payable by that Subscriber to use the Services and/or nominate others to use the Services.

Party: Any of Ellect, the User, and/or the Subscriber, as the context dictates, and “Parties” means both of the parties to this Agreement.

Privacy Policy: The privacy policy of Ellect found at https://ellect.com/privacy-policy/.

Questionnaire: The set of questions or subset of questions provided to the User and/or the User’s invitees to complete.

Services:

  1. For each User:
  • The assessment and measurement of attitudes and motivations of that individual (known as people analytics data).
  • Benchmarking the attitudes and motivations of that individual against attitudes and motivations of sample populations and other individuals (known as benchmarking results against Success Factor Models).
  • Motivational data and benchmarking results of connections of that individual.
  • Motivational data and benchmarking results of groups, workspaces, and team members of groups, workspaces, and teams the individual is a member of.
  • Suggestions for further development and recommendations for dealing with any blind spots identified.
  • Coaching Services, whether in person or via Zoom, CoachSue, or similar and/or other virtual technologies.
  • Access to connections and motivational data and benchmarking results with others inside the platform.
  • Access to Ellect Insights and any other online artifact or analysis, data, comparison, or text derived from the User’s data and assessment results and/or the results of the User’s connections.
  • Access to any integrations of Ellect and other services, including but not limited to Zoom, Google Chrome Browser, and Slack.
  1. Subject to (c) below, for each Subscriber:
  • All of the above User Services and:
  • The ability to add Users to a workspace or team over the number of Users permitted by Ellect without fees.
  • The ability to invite Users over the number of Users permitted by Ellect without fees to be invited by another User to complete a Questionnaire.
  1. For each Subscriber: Any additional services it agrees with Ellect and pays additional fees for.
  1. Where registered for: The Coaching Services.
  1. All deliverables including analysis, reports, data, comparisons, recommendations, and the like created, made available, or provided to the User under this Agreement and/or as part of any of the Services provided to them.

Subscriber: A User (including any entity) that has accepted the terms of this Agreement and any additional Subscriber terms as part of establishing a Paid Account in order to be able to invite more nominated Users to access the Services than are permitted by Ellect without fees.

User: A person (including any entity), whether or not they are also a Subscriber, who of their own volition wishes to or who is requested by another User or who requests someone to complete a Questionnaire, whether or not such is actually started or completed, and who has accepted the terms of this Agreement.

1.2 Interpretation

‍
In this Agreement, unless the contrary intention appears:

  • the clause headings are for ease of reference only and must not be relevant to interpretation;
  • a reference to a clause number is a reference to its subclauses;
  • words in the singular number include the plural and vice versa;
  • words importing a gender include any other gender;
  • a reference to a person includes bodies corporate and unincorporated associations and partnerships; and
  • where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
  1. Obligations of Ellect

Ellect will provide the User and Subscriber with access to and use of the relevant Services and any necessary information for the purposes of accessing and/or using those Services.

  1. License and Commencement

3.1 Subject to the terms of this Agreement, Ellect grants (“License”) to each User a non-exclusive, non-transferable right and limited right to access, use, and invite others to access and use the Services specified as applicable to Users for their own personal/internal use only and, for each Subscriber, to access and use the additional Services specified as applicable to Subscribers for their own personal/internal use only, based on the amount of fees paid to Ellect.

3.2 The Services may only be used by the User strictly in accordance with the terms of this Agreement and the License.

3.3 Except as expressly permitted in this Agreement or authorized by Ellect in writing, the User will not copy, use, disclose, alter, modify, reverse engineer, transfer, or reproduce any of the Services or the Confidential Information of Ellect.

3.4 In addition to any other remedies available to Ellect under this Agreement, the unauthorized use, alteration, modification, reproduction, publication, disclosure, or transfer of any of the Services or the Confidential Information of Ellect will entitle Ellect to pursue any available equitable remedy against the User.

3.5 The User acknowledges that there is no transfer of title, ownership, or any of the Intellectual Property Rights in or to any of the Services, the Confidential Information of Ellect, the API, and/or any products of Ellect.

3.6 The License granted in clause 3.1 is conditional on the User not (and the User is prohibited from):

  • Making any of the Services or the API available for the benefit of anyone (other than its permitted Users);
  • Renting, sublicensing, reselling, assigning, distributing, or otherwise exploiting the Services or the API;
  • Using any of the Services or the API to build a competitive service or product;
  • Altering or removing any proprietary trademark or copyright notice; or
  • Using the Services in a manner that interferes with or disrupts the integrity or performance of the Services.
  1. Conditions of Use

4.1 The User may only access and use the Services and/or the API in accordance with the normal operating procedures as notified by Ellect, the terms of this Agreement, and any written directions or code of conduct issued by Ellect.

4.2 The User irrevocably acknowledges and agrees that Ellect and its related entities may use any information (including personal information) or data gained as a result of access to or use of the Services and/or the API by the User under this Agreement for further research, the provision of and use for any of the Services, the API, or products of Ellect or its related entities, provided that your personal information will not be disclosed without your consent or as expressly provided for in this Agreement or the Privacy Policy.

4.3 The User consents to and agrees that Ellect may use any information (including personal information) or data gained or collected as a result of access to or use of the Services and/or the API by the User:

  • For analysis and comparison to third-party users, any other data, and for any other data analysis;
  • For analysis and/or use by third parties, including the User that requested them to undertake the Questionnaire;
  • To recommend other Ellect services or products to the User, including by email, assuming you have opted in to receive electronic marketing (unless you unsubscribe); and
  • In accordance with the Privacy Policy.

4.4 The User acknowledges that, should they provide use of the Services to any third party (if permitted by Ellect), such use will be governed by the terms and conditions of this Agreement and that the third party must agree to these terms and conditions and the Privacy Policy before providing any information to Ellect or using the Services.

  1. Security

The User will ensure that access to the Services, the API, and the Confidential Information of Ellect is protected at all times from misuse, damage, destruction, and unauthorized use.

  1. Australian Consumer Law

The Australian Consumer Law (ACL) provides guarantees for goods and services that cannot be excluded (“Statutory Guarantees”). Nothing in this Agreement purports to modify or exclude any Statutory Guarantees, conditions, and warranties and any other legal rights that the User/Subscriber may have available under the ACL. Any and all other warranties and conditions not guaranteed by the ACL are, where permitted by law, expressly excluded.

  1. Refunds and Additional Subscriber Terms

If the User cancels a subscription, they will not receive a refund or credit for any amounts that have already been billed or paid for. A User can stop using the Services and/or cancel their subscription at any time via their account settings or by contacting Ellect.

If you cancel your subscription, you will not be entitled to a refund of any fees already paid, and any outstanding fees will become immediately due and payable.

In the event of termination of a subscription for cause due to default by Ellect, Ellect shall refund, on a prorated basis, any prepaid fees for the Services for the period beginning on the effective date of termination through the end of your then-current subscription.

In the event of termination of a subscription due to a violation by the User, the User will not receive any refund and shall immediately pay any outstanding fees for the remaining period of the subscription or otherwise.

The Subscriber will comply with any additional terms relating to their Paid Account as notified, including payment of fees and taxes.

  1. Additional API Terms

8.1 For those Users who register for and are provided access to the API, Ellect grants you a non-exclusive, non-transferable, royalty-free license to use the API to integrate the services into your environment and, subject to clauses 3.6 and 8.2, your services and products in accordance with the terms of this Agreement.

8.2 The Subscriber:

  1. Is responsible for the accuracy and legality of all content entered through and received via the API.
  2. Must only use the API in accordance with this Agreement and any additional requirements of Ellect posted on any of the Sites or notified to the Subscriber by Ellect.
  3. Must only use the API in accordance with the API documentation made available by Ellect.
  4. Must not use the API in any way that adversely affects the performance or function of the API.
  5. Must not post or transmit information or materials that may violate the rights of any third party or contain a virus or other harmful component.
  6. Must not reverse engineer, decompile, or disassemble the API.

8.3 The Subscriber is liable for the use of the API by any third party to which it provides access to the API or services or products using the API, as though such use was by the Subscriber, and indemnifies Ellect against any loss, cost, expense, damage, claim, demand, action, or proceeding arising out of any failure by a third party to comply with the terms of this Agreement.

  1. Additional Coaching Terms

9.1 The Coaching Services are provided to assist you in developing and growing your skills in and understanding of particular areas of coaching. They are not (and should not be relied on as) advice of any kind. In particular and without limitation, the Coaching Services are not in any way mental health assessments, diagnoses, or advice. If you are suffering from anxiety, depression, or any other mental health or health-related issue, you should urgently seek the assessment and advice of a qualified health practitioner.

9.2 Any User using the Coaching Services also agrees to the additional terms relating to such use provided to them or referred to when registering for Coaching Services.

  1. Confidentiality

10.1 The User must not, without the prior written approval of Ellect, disclose the Confidential Information of Ellect unless specifically permitted by this Agreement.

10.2 The User may only use any analysis, comparisons, advice, and recommendations provided by Ellect as part of the Services for their own personal or internal use.

10.3 The User will not be in breach of clause 10.1 in circumstances where it is legally compelled to disclose such Confidential Information.

10.4 This clause will survive the termination of this Agreement.

  1. Intellectual Property Rights

11.1 Ellect will indemnify the User against liability under any final judgment in proceedings brought by a third party against the User, which determines that the use of the Services and/or the API in accordance with the terms of this Agreement or any written directions of Ellect constitutes an infringement in Australia of any third party’s Intellectual Property Rights.

11.2 Ellect will not indemnify the User if the infringement arises from:

  • Use of the Services or the API in combination with unapproved goods or services.
  • Use of the Services or the API in a manner not expressly provided for in this Agreement.
  • Modification or alteration of the Services or the API without prior written consent of Ellect.

11.3 The User will indemnify Ellect against any claims arising out of unauthorized use of the Services or API.

  1. Liability of Ellect

12.1 Subject to Statutory Guarantees, the maximum aggregate liability of Ellect to the User for any loss or damage arising directly or indirectly in connection with the Services or API will not exceed the greater of AUD $150 or the total fees paid for the Services.

12.2 The User will indemnify and hold Ellect harmless from any loss, liability, or costs arising from their breach of this Agreement or any unauthorized use of the Services.

  1. Termination

Ellect may terminate this Agreement immediately by providing written notice. Upon termination, Ellect may:

  • Cease providing Services.
  • Repossess any documentation or information containing Confidential Information of Ellect.
  • Be discharged from further obligations under this Agreement.
  • Pursue any additional remedies provided by law.
  1. Fair Use Policy

14.1 The purpose of this Fair Use Policy is to ensure that all Users have equitable access to the Services while safeguarding Ellect Pty Ltd’s ability to provide high-quality Services.

14.2 Acceptable Use

The User agrees to:

  • Use the Services only for the purposes and in the manner expressly authorized by this Agreement.
  • Access the Services in a way that does not disrupt, damage, or impair the performance or functionality of the Services for other Users.
  • Respect the rights of other Users and not use the Services in any way that could harm, intimidate, or unlawfully disadvantage others.

14.3 Excessive or Unreasonable Use

Excessive or unreasonable use occurs when:

  • A User’s use of the Services exceeds what Ellect deems fair, reasonable, or appropriate in the context of the Services provided.
  • The User engages in activities that consume excessive system resources, including but not limited to data storage, processing power, or API requests, which may affect the ability of Ellect to provide the Services to others.

14.4 Unacceptable Use

The User agrees not to:

  • Use the Services for illegal, fraudulent, or malicious purposes.
  • Share login credentials with unauthorized individuals or entities.
  • Exploit the Services to develop or improve competing products or services.
  • Circumvent security measures, probe for vulnerabilities, or engage in activities designed to disrupt or overload the platform.

14.5 Monitoring and Enforcement

Ellect reserves the right to monitor usage patterns and may, at its discretion:

  • Issue warnings for breaches of this Fair Use Policy.
  • Temporarily suspend or permanently terminate access to the Services for excessive or unreasonable use.
  • Take additional actions, including legal recourse, to prevent abuse or misuse.

14.6 Modification of the Fair Use Policy

Ellect reserves the right to amend this Fair Use Policy at any time. Changes will be communicated to Users via the email address provided during registration or through updates to the Terms and Conditions on the platform.

  1. Entire Agreement

This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, representations, and understandings.

  1. Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales, Australia.

  1. Notices

17.1 Notices under this Agreement may be delivered by hand, registered mail, or email to the addresses provided by the receiving Party during registration.

17.2 Notice will be deemed given:

  • In the case of hand delivery, upon written acknowledgment of receipt.
  • In the case of registered mail, three days after dispatch.
  • In the case of email, on the day it is sent to the receiving Party’s email address.