Audinate® – Dante Director SaaS Terms of Service
1. Acceptance of these Terms of Service
1.1 These terms of service (Terms) govern the Customer’s access to, and use of, the Software. By clicking a box indicating acceptance or otherwise accessing, downloading or using the Software, the Customer agrees to these Terms on the date of the Customer’s acceptance or first access, download or use of the Software, whichever occurs first (Effective Date).
1.2 These Terms are effective as between the Customer and Audinate Pty Ltd of Level 7, 64 Kippax Street, Surry Hills NSW 2010 Australia (Audinate) as of the Effective Date and continue until terminated by either party in accordance with these Terms (Term).
1.3 Customer means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you enter into these Terms on behalf of your employer or another entity, you represent and warrant to Audinate that:
1.3.1 you have full legal authority to bind your employer or such entity to these Terms; and
1.3.2 you agree to these Terms on behalf of the party that you represent.
1.4 These Terms incorporate the following additional terms, policies and agreements:
1.4.1 Audinate’s Privacy Policy (available at https://www.audinate.com/legal/privacy-policy/) (Privacy Policy).
2. Fees and Payment
2.1 The Customer agrees to pay Audinate the Licence Fees in consideration for its Subscription to the Software.
2.2 Prior to accessing and using the Software, the Customer must set up a pay-as-you-go account via the Subscription Portal for which the Customer must nominate an acceptable payment method (e.g. credit card) to pay the Licence Fees.
2.3 The Customer acknowledges and agrees that Audinate (or its payment partner) will charge the Customer’s nominated payment method as set out in the Subscription Portal for the Licence Fees monthly in advance.
2.4 Audinate may change the Licence Fee for the Software by giving the Customer at least 30 days’ advance written notice, and the change will take effect from the Customer’s next billing period (30 or more days after the notice).
2.5 Upon receiving notice of a change in the Licence Fee under clause 2.4, the Customer may terminate the relevant Subscription(s) immediately via the Payments and Subscriptions Portal or otherwise on written notice to Audinate. By continuing to access or use the Software after the date specified in the notice, the Customer agrees to such change in the Licence Fee.
2.6 The Customer acknowledges and agrees that:
2.6.1 Licence Fees are calculated in USD; and
2.6.2 if the Customer pays Licence Fees in a currency other than USD, there may be variations in the Licence Fees month to month due to currency fluctuations.
2.7 Unless expressly stated to the contrary, all prices, fees and other charges specified in this Agreement are exclusive of any and all sales and value added taxes, withholding taxes, duties and other charges (Taxes) imposed or levied in connection with the licence of the Software under this Agreement.
2.8 Despite any other provision of this Agreement, Audinate may pass on as an addition to the prices, fees and charges the amount of any Taxes.
2.9 Without limiting clause 2.8, to the extent that any supply made under or in connection with this Agreement is a taxable supply, then the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which Tax is imposed in respect of that supply (except to the extent that the consideration is expressed to be inclusive of Tax) and is payable at the same time and in the same manner as the consideration to which it relates.
3. Right to Access and Use
3.1 Subject to the Customer’s compliance with these Terms, Audinate grants to the Customer a non-exclusive, non-transferable, non-sublicensable right during the Term to:
3.1.1 access and use (and to allow its End Users to access and use) the Software as specified for the relevant Subscription and in the applicable documentation; and
3.1.2 allow its API Users to access and use API Keys generated by the Customer.
3.2 The Customer acknowledges and agrees that:
3.2.1 the Software is proprietary to Audinate, its licensors or suppliers;
3.2.2 it does not have any rights to the Software except as expressly granted in these Terms; and
3.2.3 Audinate or its licensors or suppliers retain ownership of all Intellectual Property Rights in and in relation to the Software.
3.3 The Customer must:
3.3.1 use the Software subject to any limitations specified for the relevant Subscription; and
3.3.2 comply and ensure its End Users and API Users comply with all Applicable Laws in relation to their use of the Software.
3.4 In order to access and use the Software, the Customer is required to create a customer account in accordance with the procedures notified by Audinate from time to time (Customer Account). In order for the Customer’s End Users to access and use the Software, the Customer is required to create an end user account for each End User in accordance with the procedures notified by Audinate from time to time (End User Account).
3.5 In order for the Customer’s API Users to access and use an API Key, the Customer (or its End User) is required to generate this API Key. API Keys can be generated in the Dante Director web UI by End Users with administrative access. The Customer is not required to create any End User Account for an API User.
3.6 The Customer agrees that the access rights of any of its End Users (for example on a named or password enabled basis) to the Customer Account or End User Account cannot be shared or used by more than one individual, unless the right is reassigned in its entirety to another individual End User, in which case the first End User shall no longer have any right to access the Software.
3.7 The Customer is solely responsible for:
3.7.1 all acts and activities that occur using its Customer Account or any End User Account, including any unauthorised use of the Customer Account or any End User Account or any unauthorised or excessive use of the Software (as applicable), whether undertaken by the Customer, its End Users, its personnel or any third party;
3.7.2 all usage of API Keys generated by or for the Customer; and
3.7.3 all losses, costs, damages and expenses that are incurred as a result of lost, stolen or compromised log-in credentials for the Customer Account, any End User Account or any API Key or any other unauthorised use of the Customer Account, any End User Account or any API Key.
3.8 Audinate will use reasonable endeavours to respond to basic technical enquiries about the Software. Technical enquiries may be lodged by the Customer via a web-based form at https://www.audinate.com/contact/support. For the avoidance of doubt, technical enquiry support is only available in relation to the operation of the Software and not in relation to the operation of the devices managed by the Software.
4. Customer’s obligations
4.1 The Customer acknowledges and agrees that:
4.1.1 it is responsible for undertaking its own enquiries and making its own checks in relation to the suitability and applicability of the Software for its required purpose, including whether any licence limitations set out in relevant Subscription are sufficient and appropriate for the Customer’s needs;
4.1.2 the Software is provided ‘as is’ and ‘as available’. Neither Audinate nor its licensors or suppliers represent, warrant or guarantee that the Software will be error or ‘bug’ free or available at any specific time required by the Customer;
4.1.3 the Customer must, at its own expense, provide and maintain all communications facilities required for accessing and using the Software;
4.1.4 the Customer is solely responsible for the accuracy of all Customer Data;
4.1.5 these Terms apply to any Software Updates provided or made available by Audinate to the Customer from time to time;
4.1.6 it is liable for the acts and omissions of its End Users and API Users, as if such End Users’ or API Users’ acts and omissions were those of the Customer itself;
4.1.7 it is responsible for complying with any applicable terms and conditions of any third party data, products, services, and platforms used by the Customer in conjunction with the Software; and
4.1.8 while the Software is designed to be integrated by customers into or with their (or their licensors’) products, due to the peculiarities of different products and except to the extent expressly stated in writing by Audinate or required by Applicable Law, Audinate does not represent or warrant that the Software will integrate or function with the Customer’s or any third party’s data, products, services or platforms.
4.2 The Customer must:
4.2.1 maintain accurate and up to date records of the Customer’s compliance with any limitations as set out in the relevant Subscription;
4.2.2 give reasonable access to the records referred to in clause 4.2.1 on Audinate’s request;
4.2.3 not do anything that would interfere with or otherwise disrupt the provision of the Software to, or the enjoyment of the Software by, the Customer or any other customer of Audinate;
4.2.4 not use the Software to transit any materials, or store any data, files or content, that is unlawful, immoral, libellous, pornographic, vulgar, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable;
4.2.5 not transmit any materials that contain Viruses;
4.2.6 not use the Software, or its knowledge of the same, to create (or engage or assist a third party to create) products or services that compete, whether in whole or in part with Audinate’s products and services (including the Software);
4.2.7 maintain adequate security and safety for the protection and safe-keeping of the Software;
4.2.8 notify Audinate promptly of any actual or suspected unauthorised access to the Software, the Customer Account, any End User Account or any API Key or any breach of the Customer’s security measures which relates to the Software, the Customer Account, any End User Account or any API Key;
4.2.9 not allow its End Users to share any Customer Account or any End User Account details, or allow the use of the same Customer Account or any End User Account details simultaneously by two or more End Users;
4.2.10 ensure that its End Users’ and API Users’ access and use of the Software is in accordance with these Terms;
4.2.11 not copy, modify, translate or create any derivative work of all or any portion of the Software;
4.2.12 not display, disclose, sell, transfer, license, rent, lease, loan, provide or distribute all or any portion of the Software to any third party, except where such use is expressly contemplated in a relevant Subscription, and then only to that extent;
4.2.13 not remove, alter, cover of obfuscate any copyright notice, trade mark notice or other proprietary rights notice placed or embedded on or in the Software;
4.2.14 not reverse engineer, reverse assemble, decompile or otherwise attempt to gain access to the source code of all or any portion of the Software (except to the extent such acts may not be prohibited by Applicable Law); and
4.2.15 not attempt to bypass any security measures within the Software.
5. Updates and Changes to the Software
5.1 Software Updates
Audinate may, from time to time, implement Software Updates to the Software free of charge. However, Audinate is under no obligation to implement Software Updates to the Software.
5.2 Changes
5.2.1 Audinate has the right to discontinue the Software (in whole or in part) at any time and for any reason.
5.2.2 Prior to Audinate:
(a) discontinuing the Software in whole; or
(b) discontinuing any part of the Software in a manner that results in a material change to the Software that adversely affects the operation of the Software,
Audinate will provide the Customer with at least 90 days’ advance written notice of such discontinuation of the Software or any part of the Software.
5.2.3 Upon receiving a notice provided under clause 5.2.2(b), the Customer may terminate the relevant Subscription(s) and/or these Terms via the Payments and Subscriptions Portal or otherwise on written notice to Audinate. By continuing to access or use the Software after the date specified in the notice, the Customer agrees to the change described in the notice.
6. Documentation
6.1 Audinate will make the then current documentation and other materials relating to the Software available from Audinate’s website (https://getdante.com/products/network-management/dante-director).
6.2 The Customer acknowledges and agrees that such documentation and materials may be updated by Audinate from time to time without notice to the Customer.
7. Warranties
Each party represents and warrants to the other that:
7.1.1 these Terms constitute a valid and binding agreement enforceable against such party in accordance with its terms and conditions;
7.1.2 no authorisation or approval from any third party is required in connection with such party’s entry into, delivery or performance of these Terms; and
7.1.3 the entry into, delivery, and performance of these Terms does not violate Applicable Laws or the terms and conditions of any other agreement to which it is a party or by which it is otherwise bound.
8. Intellectual Property Rights
8.1 Ownership
8.1.1 All Intellectual Property Rights subsisting in, relating to or arising out of the Software or the documentation are (as between the parties) owned by and vest in Audinate on creation, including all Software Updates, updates, modifications, developments or enhancements made by or on behalf of either party to such Intellectual Property Rights.
8.1.2 Nothing in these Terms transfers any right, title or interest in Audinate’s (or its licensors’) Intellectual Property Rights in the Software or the documentation (including all Software Updates, updates, modifications, developments or enhancements made by or on behalf of either party to such Intellectual Property Rights) to the Customer or any other person, except as expressly granted in these Terms.
8.1.3 The Customer must promptly give notice in writing to Audinate if it becomes aware of any unauthorised or suspected unauthorised disclosure to any third party of any of Audinate’s Confidential Information or of any infringement or suspected infringement by any third party of any of Audinate Intellectual Property Rights, and provide Audinate with all information and assistance reasonably required by Audinate in respect of such unauthorised disclosure or infringement.
8.1.4 If and to the extent that the Customer provides Audinate with feedback or recommendations on any features or functions of the Software Audinate may use any such feedback or recommendations without charge, restriction or obligation.
8.1.5 All Intellectual Property Rights in the Third Party Products are owned by the provider of the relevant Third Party Product (or its licensor).
8.2 Customer Data
8.2.1 As between the parties, the Customer owns all Intellectual Property Rights in the Customer Data. The Customer grants Audinate a royalty free, non-exclusive, revocable licence to host, copy, transmit, display or otherwise use the Customer Data during the Term for the sole purpose of providing the Software and performing Audinate’s other obligations under these Terms.
8.2.2 The Customer acknowledges that it is solely responsible for:
(a) ensuring the Customer Data is accurate, complete and appropriate;
(b) all modifications to, or deletions of, Customer Data;
(c) taking all necessary steps to secure, backup, protect and archive all of the Customer Data;
(d) the security of all log in credentials to access the Software; and
(e) ensuring that the Customer Data, and the use of the Customer Data by Audinate in connection with the provision of the Software, complies with all Applicable Laws.
8.2.3 The Customer acknowledges that through its End Users’ and its API Users’ use of the Software, Audinate will have access to Product and Usage Data. The Customer grants Audinate a worldwide, perpetual, non-exclusive, sub-licensable, irrevocable, royalty free license to access, use, process, copy, distribute, perform, export, and display the Product and Usage Data for the purposes of:
(a) providing the Software and performing Audinate’s obligations under these Terms;
(b) product maintenance, development and improvement of Audinate and third party products and services;
(c) gaining insights into the use of Audinate and third party products and services; and
(d) suggesting other Audinate products and services to the Customer.
Any use by Audinate of the Product and Usage Data for the purposes provided in paragraphs (b), (c) and (d) immediately above is on the condition that the Customer, its End Users and its API Users are not personally identifiable.
8.3 Personal Information
8.3.1 Audinate may collect personal information about the Customer, End Users and API Users in connection with the Subscription and use of the Software and otherwise in connection with these Terms. The Customer acknowledges, agrees and consents to Audinate collecting and using such personal information in accordance with the Privacy Policy and agrees that it will obtain all necessary consents from and make any necessary notifications to individual End Users and API Users of the Customer to allow Audinate to process such personal information for any lawful purpose in accordance with the Privacy Policy.
9. Disclaimer of Warranty
9.1 To the fullest extent permitted by Applicable Law but subject to clause 10, Audinate, its licensors and suppliers exclude all implied representations, warranties, terms and conditions of any kind whatsoever (whether implied by common law, statute or otherwise) and the application or availability of any statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees that the Software is of satisfactory quality or fit for purpose) and none of Audinate, its licensors or suppliers warrant that the operation or use of the Software will be uninterrupted or error or bug-free.
9.2 The Customer acknowledges that the public internet is an inherently insecure environment and that Audinate has no control over the privacy of any communications or the security of any data outside of its internal systems.
9.3 The use of the public internet will be at the Customer’s sole risk and Audinate is not liable for any losses, costs, damages or expenses arising in connection with such use of the public internet including all liability for any disclosure of Confidential Information when transmitted over the public internet
10. Limitation of Liability
10.1 Neither party (nor its licensors or suppliers), will be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with these Terms for any Consequential Loss, even if such party (or its licensors’ or suppliers’) has been advised of the possibility of such loss or damage.
10.2 Subject to clause 10.3 and to the maximum extent permitted by Applicable Law, the maximum aggregate liability of each party (or its licensors’ or suppliers’) arising out of or related to these Terms, regardless of the forum and regardless of whether any action or claim is based on contract, tort (including negligence), breach of statute or otherwise, will not exceed the total amount paid by the Customer to Audinate in the 6-month period prior to the event first giving rise to the claim.
10.3 The exclusions and limitations on a party’s liability under these Terms, including this clause 10, do not apply in the case of:
10.3.1 the indemnities given in clause 11; or
10.3.2 any liability to the extent that the same may not be excluded or limited as a matter of Applicable Law.
10.4 Nothing in these Terms is intended to exclude, restrict or modify any consumer rights or any other legislation which may not be excluded, restricted or modified by agreement. If any other legislation implies a condition, warranty or term into these Terms or provides statutory guarantees in connection with these Terms, in respect of any goods or services supplied (if any), the liability of Audinate and its licensors or suppliers for breach of such a condition, warranty, other term or guarantee is limited, to the extent it is able to do so to, to Audinate or such licensor or supplier doing any one or more of the following (as determined by Audinate or its licensor or supplier):
10.4.1 in the case of supply of goods:
(a) replacing the goods or supplying equivalent goods;
(b) repairing the goods;
(c) paying the cost of replacing the goods or of acquiring equivalent goods; or
(d) paying the cost of having the goods repaired; or
10.4.2 in the case of supply of services:
(a) supplying the services again; or
(b) paying the cost of having the services supplied again.
11. Indemnity
11.1 The Customer must indemnify and hold harmless Audinate against all Loss sustained, incurred, or suffered by Audinate as a result of:
11.1.1 the Customer’s, its End Users’ or its API Users’ use of the Software or the documentation other than as permitted under these Terms; or
11.1.2 any infringement claim or action against Audinate or settlement thereof based on any alleged infringement of any Intellectual Property Rights or other rights in connection with the Customer Data,
provided that:
11.1.3 Audinate gives the Customer prompt written notice of the claim, together with all relevant facts;
11.1.4 Audinate provides such assistance in connection with the defence and settlement of the claim as the Customer may reasonably request; and
11.1.5 the Customer will have no obligations under this clause 11.1 for any infringement to the extent that it arises out of or is based upon Audinate’s use of the Customer Data other than as permitted under these Terms.
11.2 Audinate will defend the Customer against any claim, action or proceeding alleging that the provision or use of the Software or the documentation in accordance with these Terms infringes the Intellectual Property Rights of any third party, and will pay any amount (including reasonable legal fees) that is directly related to that claim, action or proceeding and which is finally awarded by a court or included in a settlement that Audinate approves in writing (such approval not to be unreasonably withheld or delayed), provided that:
11.2.1 the Customer gives Audinate prompt written notice of the claim, together with all relevant facts;
11.2.2 Audinate has full and complete control over the defence and settlement of the claim;
11.2.3 the Customer provides such assistance in connection with the defence and settlement of the claim as Audinate may reasonably request;
11.2.4 the Customer complies with any settlement or court order made in connection with the claim, including in relation to the future use of any infringing material;
11.2.5 Audinate has the right to settle any claims in its sole and absolute discretion; and
11.2.6 Audinate will have no obligations under this clause 11.2 for any infringement to the extent that it arises out of or is based upon:
(a) any unauthorised combination, operation or other use of the Software or the documentation if such infringement would have been avoided but for such combination, operation or use;
(b) use of the Software or the documentation outside of the limitations set out in the relevant Subscription;
(c) use of the Software or the documentation in breach of these Terms;
(d) the Customer’s failure to comply with reasonable instructions, documentation or materials provided by Audinate, if the alleged infringement would not have occurred but for such failure;
(e) use of all or part of the Software if the Customer refuses an alternative that is not subject to the claim, action or proceeding or refuses to discontinue using the Software when notified in accordance with clause 11.2.7 below; or
(f) any modification of the Software or the documentation not made by Audinate where such infringement would not have occurred absent such modification.
11.2.7 If a claim under this clause 11.2 is or is likely to be made by any third party, Audinate may, at its option and expense, procure the right for the Customer to continue using the Software, or modify or replace the Software. If Audinate reasonably considers that procuring the right for the Customer to continue to use the Software, or modifying or replacing the Software are not practicable in the circumstances, Audinate will promptly notify the Customer in writing to discontinue using the Software and the Customer will discontinues such use, and Audinate will refund any part of the Licence Fee attributable to the period following such discontinuation.
11.2.8 This clause 11.2 sets out the Customer’s exclusive remedy and Audinate’s entire liability regarding infringement of third party Intellectual Property Rights.
12. Confidentiality
12.1 Subject to the provisions of clauses 12.2 and 12.3, each party must:
12.1.1 treat as strictly confidential and only use the other party’s Confidential Information solely for the purposes contemplated by these Terms; and
12.1.2 not, without the prior consent of the party from whom the Confidential Information was obtained (which may be withheld in that party’s absolute discretion), publish, use or otherwise disclose to any person the other party’s Confidential Information except for the purposes contemplated by these Terms.
12.2 Each party may disclose Confidential Information which would otherwise be subject to clause 12.1 if, but only to the extent, it can demonstrate that:
12.2.1 such disclosure is required by Applicable Law;
12.2.2 the Confidential Information was lawfully in its possession before its disclosure by the other party and had not been obtained from the other party; or
12.2.3 the Confidential Information was in, at the time of disclosure, or has come into the public domain other than as a result of a breach of these Terms or any other obligation of confidence,
provided that any such disclosure must not be made without prior consultation with that party form whom the Confidential Information was obtained (to the extent such consultation is not prohibited by Applicable Law) and in the case of disclosures under clause 12.2.1, must be made so as to minimise any such disclosure.
12.3 Each party may for the purposes contemplated by these Terms disclose the other party’s Confidential Information to any of the following persons, provided that such persons have first been directed (Direction) by the disclosing party to keep it confidential: its officers and employees; and its professional advisers, auditors, bankers and insurers, acting as such. The disclosing party must enforce each Direction at its own cost.
13. Third Party Products or Services
13.1 The Software may permit the Customer to:
13.1.1 use any Third Party Products made available by Audinate (including the Payment and Subscription Portal); or
13.1.2 install or enable any Third Party Products for use with the Software.
13.2 In respect of Third Party Products which the Customer uses, installs or enables for use with the Software in accordance with clause 13.1, the Customer acknowledges:
13.2.1 the Customer’s use, installation or enabling of that Third Party Product will be governed by the specific terms and conditions, which will apply between the Customer and the relevant third party provider of the Third Party Product (or as otherwise stated in the relevant Subscription); and
13.2.2 that Audinate:
(a) will have no liability in relation to such Third Party Products;
(b) without limiting clause 13.2.2(a), will not be responsible for any disclosure, modification or deletion of Customer Data in connection with any access by the relevant third party vendor to Customer Data;
(c) may allow the third party vendors of those products or their Affiliates to have access to the Customer Data as required for the interoperation and support of such Third Party Products or other third party products or services with the Software; and
(d) does not warrant the use or performance of such Third Party Products or other third party products or services, nor does it provide any support for such Third Party Products or other third party products, irrespective of whether or not they are designated by Audinate as “verified”, “approved” or similar.
14. Suspension
Audinate may suspend the Customer’s use of, licence to and access to, any Software by notice in writing to the Customer if:
14.1.1 Audinate believes, in its sole discretion, that the Customer has breached any of the provisions of these Terms or otherwise failed to perform any of its obligations under these Terms;
14.1.2 the Customer’s use of the Software or the documentation:
(a) is fraudulent or may cause Audinate to be subject to liability; or
(b) breaches any Applicable Law; or
14.1.3 the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
15. Termination
15.1.1 Either party may terminate these Terms (including all Subscriptions) immediately if:
(a) the other party is in material breach of these Terms and has failed to remedy the breach within 30 days of receipt of a written notice from the first party requiring it to do so; or
(b) the other party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
15.1.2 The Customer may terminate these Terms and/or any relevant Subscription via the Payments and Subscriptions Portal, or otherwise on written notice to Audinate. If the Customer terminates these Terms and/or any relevant Subscription, such termination will be effective upon conclusion of the Customer’s then-current billing period.
15.1.3 Audinate may:
(a) terminate these Terms (including the relevant Subscriptions) on the effective date of any notice of discontinuance of Software given in accordance with clause 5.2; and
(b) suspend and/or terminate these Terms (including the relevant Subscription) immediately if the continuing performance by Audinate of its obligations under these Terms (including its receipt of payment from the Customer) could in the reasonable judgement of Audinate cause Audinate to breach or be at material risk of breaching Applicable Laws.
16. Effects of Termination
16.1 On termination or expiry of these Terms (or any relevant Subscription):
16.1.1 the rights granted under clause 3 automatically cease;
16.1.2 the Customer must cease using the Software;
16.1.3 the Customer must promptly destroy or otherwise dispose of all of the documentation (including any copies thereof) within the Customer’s possession or control;
16.1.4 the obligations of confidentiality (but not the rights to disclose Confidential Information) under clause 12 will continue to apply to the parties; and
16.1.5 clauses 5, 9, 10, 16, 17, 18, 19 and 20 will continue to apply to the parties.
16.2 Termination or expiry of these Terms (or any relevant Subscription) for whatever reason does not affect the rights and obligations of the parties which have accrued before the date of termination or expiry, including the right to claim damages as a result of a breach of these Terms.
17. Dispute resolution
17.1 A party claiming that a dispute (Dispute) has arisen under or in connection with these Terms must notify the other party in writing giving details of the Dispute.
17.2 During the 20 Business Day period after a notice is given under clause 17.1 (or any longer period agreed in writing between the parties) (the Initial DR Period) the parties must work in good faith to resolve the Dispute.
17.3 If the Dispute is not resolved by the parties within the Initial DR Period, the Dispute must be referred to the Customer’s chief information officer (or equivalent) and Audinate’s chief information officer (or equivalent) and such representatives of the parties must work together in good faith to resolve the Dispute within a period of 20 Business Days (or any longer period agreed in writing between the parties).
17.4 While the procedure in this clause is being followed, both parties must continue to fulfil their obligations under these Terms.
17.5 The procedure in this clause does not limit or exclude a party’s rights under these Terms or at common law or equity (including the right to make applications for interim relief, including injunctions).
18. Export and other restrictions
18.1 The Customer acknowledges that the Software may be subject to export control laws, restrictions and regulations (Export Control Laws) and that the Export Control Laws may prohibit Audinate from allowing the Customer to access and use the Software or may require Audinate to discontinue making the Software available to the Customer without notice. By using the Software the Customer warrants that it is not prohibited from accessing the Software and agrees that it must: (A) comply with all applicable import laws and Export Control Laws; (B) obtain all necessary export licences in connection with any subsequent export, re-export, transfer and use of the Software; and (C) not make the Software available to anyone who is prohibited from accessing it under the laws or regulations of any jurisdiction.
18.2 If the Software is acquired by or on behalf of any agency or unit of the United States Government (US Government), the US Government agrees that the Software is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the US Government’s rights with respect to the Software are limited by these Terms pursuant to applicable regulations, including FAR 12.212(a); FAR 52.227-14 and 52.227-19; DFARS 227.7202-1(a) and 227.7202-3(a); and DFARS 252.227-7013(c)(1)(ii).
19. General
19.1 Assignment and Subcontracting
19.1.1 The Customer must not assign, novate, transfer, sub-contract or otherwise dispose of any or all of its rights and/or obligations under these Terms without Audinate’s prior written consent (such consent not to be unreasonably withheld or delayed).
19.1.2 Audinate may assign, novate, transfer, or otherwise dispose of any or all of its rights and/or obligations under these Terms to a Audinate Group member or a third party that has acquired a significant part of the Audinate Group’s business, assets or undertaking, without the prior written consent of the Customer and, in the case of a novation, the Customer, Audinate and the relevant third party will execute a novation agreement in a form reasonably prescribed by Audinate.
19.1.3 Audinate may enter into any sub-contract with any third party for the performance of its obligations under these Terms without the prior written consent of the Customer. Any such sub-contract does not excuse Audinate from performing its obligations under these Terms.
19.2 Variations
19.2.1 Audinate may amend or update these Terms from time to time and will provide the Customer with at least 30 days’ advance written notice of any material amendments or updates to these Terms.
19.2.2 Upon receiving notice provided under clause 19.2.1, the Customer may terminate the relevant Subscription(s) and/or these Terms immediately via the Payments and Subscriptions Portal or otherwise on written notice to Audinate. By continuing to access or use the Software after any amendments to these Terms, the Customer agrees to such amendments or updates.
19.3 Entire Agreement
These Terms constitute the whole agreement between the parties relating to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
19.4 Rights Cumulative and Other Matters
The rights, powers, privileges and remedies provided under any provision of these Terms are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under any other provision of these Terms or by Applicable Law or otherwise. No failure to exercise nor any delay in exercising by any party of any right, power, privilege or remedy under these Terms will impair or operate as a waiver thereof in whole or in part.
19.5 Force Majeure
A party will have no liability to the other party in respect of anything which, apart from this provision, may constitute breach of these Terms arising by reason of force majeure, namely circumstances beyond the control of the party, which will include acts of God, perils of the sea, air, fire, flood and drought, explosion, sabotage, accident, sanction, embargo, riot, civil commotion, including acts of local government and parliamentary authority; epidemic, pandemic or public health emergency and any resulting governmental action including work stoppages, mandatory business, service or workplace closures, full or partial lockdowns or affected areas, quarantines, border closures and travel restrictions; breakdown of equipment, unavailability of internet or other infrastructure and labour disputes.
19.6 Governing Law and Jurisdiction
These Terms are governed by, and must be construed in accordance with the laws of the New South Wales, Australia, without regard to conflicts of laws provisions and each party submits to the non-exclusive jurisdiction of the courts of the New South Wales, Australia. The parties agrees that, to the extent permitted by Applicable Laws, the Vienna Convention of 1980 (The Convention on the International Sale of Goods) and all international and domestic legislative (or other) implementations of that Convention do not apply to these Terms.
20. Definitions and Interpretation
20.1 In these Terms, unless the context requires otherwise:
(a) Affiliate means, in respect of a company or other business entity, any company or other business entity Controlled by, Controlling, or under common Control of that company or other business entity.
(b) Applicable Laws means all applicable laws, rules, regulations, sanctions, Export Control Laws or other requirements of regulatory or governmental authorities having jurisdiction over the relevant party and/or the provision, receipt or use of the services under these Terms.
(c) Audinate Group means Audinate and its Affiliates from time to time.
(d) API Key means a sequence of characters that a user of Dante Director uses to authenticate requests to the Dante Director application programming interface.
(e) API User means any person who receives or uses an API Key generated by or on behalf of the Customer to access and use the Software.
(f) Business Day means any day other than a Saturday, Sunday or public holiday in New South Wales, Australia.
(g) Confidential Information means, in relation to a party, all information relating to that party and its Affiliates, including all information concerning the business, products, services, systems, procedures and records (in whatever form, including in electronic format) of that party and its Affiliates, and their relationships with customers and suppliers. Confidential Information of Audinate includes the Software, the documentation, all information relating to the Software and the documentation and all Intellectual Property Rights existing in the same, any internal or third party audit reports disclosed by or on behalf of Audinate, and these Terms and any other information delivered by Audinate, which, under the circumstances, would reasonably be understood to be confidential or proprietary.
(h) Consequential Loss means any:
(i) loss or damage, not arising naturally or directly (that is, according to the usual course of things) from the relevant breach, act or omission, whether or not that loss or damage may reasonably be supposed to have been in the contemplation of the parties, when they entered into these Terms as the probable result of that breach, act or omission; or
(ii) loss of revenue, profit, opportunity, business, goodwill or reputation; failure to realise anticipated savings; loss or corruption of data; downtime costs; damage to credit rating; third party losses including damages, credits or penalties payable under contracts other than these Terms (in each case, whether direct or indirect).
(i) Control means the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of fifth percent (50%) or more of the voting interest, by contract, or otherwise (and Controlled and Controlling shall be construed accordingly).
(j) Customer has the meaning set out in clause 1.3.
(k) Customer Account has the meaning set out in clause 3.4.
(l) Customer Data means any data, information and other materials uploaded, entered, accessed, inputted by or on behalf of the Customer or otherwise received as an output through the Customer’s (or its End Users’ or API Users’) use of the Software. For clarity, Customer Data does not include Product and Usage Data.
(m) Dante means Audinate’s complete media networking solution, which distributes digital media via standard ethernet networks, with near-zero latency and synchronisation.
(n) Dante Director means Audinate’s cloud based SaaS application that allows the Customer to organise and manage Dante devices from logical groups, manage users’ access, secure the Customer’s devices, and remotely manage one or more Dante networks, including API Keys.
(o) Dante Director Portal means Audinate’s online portal relating to the Software, available at https://director.dante.cloud/.
(p) End User means such persons that the Customer has authorised to access or use the Software under the Customer Account.
(q) End User Account has the meaning set out in clause 3.4.
(r) Intellectual Property Rights means patents, trade secrets, trade marks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, copyright (including rights in computer software) and topography rights; inventions, known-how, secret formulae and processes, lists of customers and suppliers and other proprietary knowledge and information; internet domain names; rights protecting goodwill and reputation; database rights; and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world.
(s) Licence Fee means the licence fees for the Software as specified in the relevant Subscription or otherwise agreed in writing by the parties.
(t) Payments and Subscriptions Portal means the third party portal used to modify or cancel Subscriptions, available at https://audinate.onfastspring.com/account or via the Dante Director Portal.
(u) Product and Usage Data means any data, information, or other materials regarding how the Customer (and its End Users and API Users) uses the Software, including how the Customer (and its End Users and API Users) uses Customer Data as well any data and information about the Customer’s devices managed by the Software including information relating to the devices’ product name, model, MAC ID, IP address, configuration, operation, functionality, features etc.
(v) Software means Dante Director licensed to the Customer under these Terms, as specified in the relevant Subscription and includes all Software Updates made to the Software from time to time.
(w) Software Update means any enhancement, modification, improvement, extension in performance, new release or version, upgrade or update to the Software.
(x) Subscription means the subscription for the Software as specified in the Subscription Portal, setting out the limitations applicable to the Software.
(y) Subscription Portal means the online portal used to sign up to and purchase Subscriptions, available at https://my.audinate.com/dante-director or via the Dante Director Portal.
(z) Third Party Products means any products or services provided by a third party.
(aa) Virus means any disabling feature or device (including any software, code, file, programme, worm, trojan horse, virus or other similar things or devices) which is designed or intended to: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or, adversely affect the user experience.
20.2 In these Terms, unless the context requires otherwise:
20.2.1 a reference to a party means a party to these Terms;
20.2.2 any reference to a ‘person’ includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same include a reference to the others;
20.2.3 references to clauses are references to clauses within these Terms;
20.2.4 any phrase introduced by the words ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression must be construed as illustrative only and must not be construed as limiting the generality of any preceding words; and
20.2.5 references to the singular include the plural and to a gender includes all other genders, and in each case vice versa.