Terms and Conditions
The platform accessible at digitalpaths.co and its related services, products, websites, tools and applications (together the Platform) is owned and operated by DigitalPaths Pty Ltd ACN 652 747 512 (Provider). These Software as a Service Terms and Conditions (Terms and Conditions) govern access to and use of the Platform by you, the individual using the Platform, and any legal entity on whose behalf you are acting (Client).
Please carefully read these Terms and Conditions including the disclaimer in clause 11. By clicking “I agree” (or a similar button) that is presented to you in relation to these Terms and Conditions, or by using or accessing the Platform, you indicate your assent to be bound by these Terms and Conditions.
If a person is agreeing to these Terms and Conditions on behalf of the Client, the person agreeing on behalf of the Client warrants that it has the irrevocable authority and agreement of the Client to be bound by these Terms and Conditions.
The Provider may, at its sole discretion, vary or modify these Terms and Conditions and any Services by posting such amended Terms and Conditions and Services on the Platform. The Provider will notify the Client of any material changes directly to the email address linked to the Client’s Account. Unless otherwise stated, all amended terms will automatically be effective from the date they are posted on the Platform. Any subsequent access to, or use by the Client of the Platform and the Services will constitute an acceptance of those changes. If the Client does not agree to these new terms, please stop using the Platform and the Services. Each time the Client accesses or uses the Platform they should revisit these Terms and Conditions.
1. Definitions and Interpretations
1.1 Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: an account enabling the Client and an Authorised User to access and use the Platform.
(b) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Address for Service: for the Client means such address set out in their Account, and for the Provider such address set out on the Platform, or such other address for service advised by the party to the other parties in writing from time to time.
(d) Applicable Laws: any laws governing or affecting the arrangements contemplated by these Terms and Conditions.
(e) Authorised User: such persons authorised by the Client to access the Platform using the Client’s Subscription (each Authorised User will have its own Account in accordance with these Terms and Conditions).
(f) Client Data: all data, files, works and materials uploaded to or stored on the Platform by the Client (or Authorised Users), transmitted by the Platform at the instigation of the Client (or Authorised Users), or supplied by the Client (or Authorised Users) to the Provider for uploading to, transmission by or storage on the Platform.
(g) Commencement Date: the date that the Client subscribes to the Platform and makes the initial payment of the Subscription Fee.
(h) Confidential Information: of a party means all information (in any form):
(i) relating to or arising from the Services (including the Client Data for the Client);
(ii) that concerns a party's business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
(iii) includes these Terms and Conditions;
but does not include information that:
(iv) is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or
(v) becomes publicly available without breach of these Terms and Conditions.
(i) Corporations Act: the Corporations Act 2001 (Cth).
(j) End User Licence Agreement: the End User Licence Agreement which applies to all Authorised Users of the Platform, a copy of which is accessible on the Platform, and as amended from time to time.
(k) Fee: any fees payable by the Client to the Provider to use the Services in accordance with clause 4.1(a), including the Subscription Fee and any other fees and charges payable by the Client to the Provider under these Terms and Conditions.
(l) Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(i) strikes, lock-outs or other industrial action;
(ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(v) interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(vi) interruption of networks or third-party services (including telecommunication or web services); and
(vii) the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however does not include a lack of funds.
(m) Further Term: has the meaning provided for that term in clause 3.2(a).
(n) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(o) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(p) Initial Term: has the meaning provided for that term in clause 3.2(a).
(q) Insolvency Event:
(i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
(ii) a liquidator or provisional liquidator is appointed in respect of a person;
(iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
(iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
(v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
(vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
(r) Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
(i) all rights in all applications to register those rights;
(ii) all renewals and extensions of those rights; and
(iii) all rights in the nature of those rights, such as Moral Rights.
(s) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(t) Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Client by the Provider at any time.
(u) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(v) Platform: means the platform accessible at digitalpaths.co and its related services, products, websites, tools and applications.
(w) Policy: means any policy of the Provider in place from time to time.
(x) Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
(y) Privacy Policy: means the privacy policy of the Provider as accessible on the Platform.
(z) Related Entity: has the meaning given in section 9 of the Corporations Act.
(aa) Services: means any services that the Provider provides to the Client, including without limitation access to the Platform.
(bb) State: Victoria, Australia.
(cc) Subscription: a subscription purchased by the Client to access and use the Platform on the terms set out in these Terms and Conditions.
(dd) Subscription Fee: the subscription fees payable by the Client for access to the Platform, as set out on the Platform.
(ee) Term: means the term of the Client’s Subscription to the Platform.
(ff) Terms and Conditions: these Software as a Service Terms and Conditions and any amendments to these Terms and Conditions from time to time.
1.2 Interpretation
In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
(c) References to parties are references to the parties to these Terms and Conditions.
(d) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h) A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(j) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under these Terms and Conditions by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under these Terms and Conditions on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v) Where these Terms and Conditions is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(w) These Terms and Conditions includes all schedules, annexures, appendices, attachments and exhibits to it.
(x) A reference to writing or written includes email.
(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. Use of the platform
2.1 The Platform is a cloud-based data analytics service that provides data insights based on inputs provided by the Client and third-party integrations. Authorised Users will have access to the Platform in accordance with these Terms and Conditions, which the Client is able to manage on the Platform.
2.2 Although the Platform provides a data analytics service, the Client acknowledges and agrees that:
(a) due to the nature of software, the Provider is unable to guarantee the data accuracy of any information generated (including data insights and analytics);
(b) as the Platform relies on input from the Client (and its Authorised Users) and third-party integrations the Provider will not be liable for any data inaccuracies or faults on the basis of input by the Client (and its Authorised Users) and any data provided by third-party integrations; and
(c) the Provider makes no representations about the suitability of the Platform for any purpose.
2.3 In providing Client Data to the Platform, the Client acknowledges and agrees that they are authorised to disclose such information and that, without the Provider taking any further steps required by applicable data protection or privacy laws, is able to collect, use and disclose such Client Data for the purposes described in the Provider’s Privacy Policy.
2.4 The Platform is available only to persons who can form legally binding contracts under Applicable Laws.
3. Subscription to the Platform
3.1 Subscription access & limitations
(a) The Provider may offer a number of different subscription plans in respect of the Platform. The details of the plans are available on the Platform at the time the Client subscribes and may be modified by the Provider from time to time.
(b) Subject to the Client’s compliance with these Terms and Conditions, the Provider hereby grants to the Client the non-exclusive, non-transferable, revocable right to use the Platform during the Term in accordance with these Terms and Conditions.
(c) The right to use the Platform is granted to the Client and its Authorised Users only and is subject to any restrictions and limitations of the Client’s Subscription as stated on the Platform at the time the Client subscribes (or as modified in accordance with these Terms and Conditions). This may include without limitation a limit on the number of Authorised Users that the Client can authorise to access the Platform using the Client’s Subscription.
(d) All Authorised Users of the Platform must agree to and will be bound by the End User Licence Agreement, and the Client is solely responsible for ensuring that they do so, and is solely responsible for all actions and omissions of all Authorised Users (and any other person that uses the Client’s Account). In the event the Client or any Authorised Users do not agree to the End User Licence Agreement, they must not use the Platform.
(e) The Client is solely responsible for ensuring its Authorised Users comply with the provisions of these Terms and Conditions, and a breach by any of the Authorised Users of these Terms and Conditions will be deemed to be a breach by the Client. Any licence granted to Authorised Users is solely while authorised by the Client. If the Client removes an Authorised User’s authorisation, their licence to access the Platform immediately ceases and the Client is responsible for terminating their access.
3.2 Subscription Term
(a) The Client’s Subscription to the Platform will commence on the Commencement Date and continue until terminated in accordance with these terms. The Client’s Subscription to the Platform will be for an initial period of 12 months from the Commencement Date (Initial Term), and will automatically renew each year on the anniversary of the Commencement Date for a further 12 month period (each a Further Term) unless the Client cancels their Subscription by giving the Provider at least 30 days’ notice prior to the renewal date in accordance with the cancellation method provided on the Platform (in which case termination will take effect at the end of the then current Subscription term). The Client is not otherwise permitted to terminate their Subscription to the Platform during the Initial Term or any Further Term except where expressly permitted under these Terms and Conditions.
(b) The Client authorises the Provider to store the Client’s payment method and to automatically charge the Subscription Fee for each renewed year.
3.3 Access restrictions
(a) Except to the extent expressly permitted in these Terms and Conditions, the right granted by the Provider to the Client under clause 3.1 is subject to the following prohibitions:
(i) the Client must only sub-license its right to access and use the Platform to Authorised Users in accordance with these Terms and Conditions;
(ii) the Client must only use the Platform as it is intended;
(iii) the Client must not directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Services (except to the extent expressly permitted by Provider or authorised within the Platform);
(iv) the Client must not create derivative works based on the Platform (except to the extent expressly permitted by Provider or authorised within the Platform); and
(v) the Client must not make any alteration to the Platform.
4. Account
4.1 In order to use the Platform, the Client must have their own Account. The Client is authorised to create administrator level Accounts for the administration of its access to the Platform and its Authorised Users are each permitted to create one user-level Account. The permissions of each Authorised User Account will be as determined by the Client’s administrator Account. In creating and using the Account:
(a) the Client (and each Authorised User) must not use false or misleading information and must update their details should they have changed from the last time they used the Platform;
(b) the Client (and each Authorised User) must follow any password policies made available by the Provider from time to time (and as are stated on the Platform from time to time);
(c) the Client (and each Authorised User) must not share access to their Account with others (unless agreed in writing by the Provider);
(d) the Client (and each Authorised User) is responsible for the security of its username and password and the Provider will assume that anyone using the Client’s (and each Authorised User’s) Account is authorised to do so by the Client and the Client is responsible for their actions. Under no circumstances will unauthorised access and use of the Client’s Account reduce the Client’s liability to the Provider; and
(e) the Client must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach.
5. Fees
5.1 Fees & Billing Cycle
(a) The Client must pay the Provider the Subscription Fee monthly in advance during the term of the Subscription (with the first payment due on or before the Commencement Date and monthly payments due monthly thereafter). The Subscription Fee payable by the Client for their Subscription to the Platform and any other charges the Client may incur in connection with their use of the Platform will be as stated on the Platform at the time the Subscription is purchased (and at the time of renewal for each Further Term). For the avoidance of doubt, the Subscription Fee for each Further Term is subject to change, and will be as stated on the Platform at the time of renewal.
(b) The Client may elect to participate in certain add-ons or functionality of the Platform which must be paid for in accordance with the terms set out on the Platform.
5.2 Payment method
(a) Payment of the Fees is to be made via the method permitted on the Platform.
(b) If the parties have agreed that the Fees will be paid via a direct debit arrangement, then the Client irrevocably authorises the Provider to debit the Fees during the term from the Client’s nominated bank account/credit card/debit card (“Debit Account”), on or about the due date for payment without notice to the Client. The Client must ensure that the Debit Account details are up to date at all times and the Client must notify the Provider in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Provider to deduct all other fees and charges payable by the Client to the Provider under these Terms and Conditions from the Client’s nominated Debit Account. The Client warrants that the Client is the owner or has the right to use any Debit Account details provided to the Provider. Default charges will apply in the event that the Client stops the authority to charge the Debit Account without acceptance by the Provider. Insufficient funds in the Debit Account will also attract a fee.
5.3 Overdue Payments
(a) Where any part of the Fees or other monies payable by the Client under or in connection with these Terms and Conditions are not paid by its due date, the Provider reserves the right to:
(i) suspend the Client’s access (including the access of its Authorised Users) to the Platform until all overdue amounts are received by the Provider in cleared funds; and
(ii) suspend the Client’s access to any data stored on the Platform (to the extent permitted by law) until all overdue amounts are received by the Provider in cleared funds in accordance with clause 9.
(b) The Client acknowledges that the Provider may not grant the Client access to the Platform until they have received payment of all required Fees payable in cleared funds.
5.4 General
(a) The Client must pay all Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.
(b) The Client is responsible for any foreign exchange and currency conversion fees incurred in relation to payment of the Fees.
(c) All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST, which will be added to those amounts and payable by the Client to the Provider.
(d) Depending on the method of payment the Client uses to pay the Fees, additional charges may be incurred (such as a small credit card processing charge).
(e) All amounts paid by the Client are non-refundable to the extent permitted by law.
6. Client Obligations
6.1 The Client acknowledges and agrees that it will:
(a) only use the Platform in accordance with these Terms and Conditions and any Policy; and
(b) not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform.
6.2 The acts and omissions of any Authorised User are deemed to be the acts and omissions of the Client and the Client is liable for its Authorised Users and must ensure that they comply with the Client’s obligations in respect of the use of the Platform.
6.3 The Client’s use of the Platform and the Services, including the information submitted on the Platform and the Services, must not (and they must ensure that their Authorised User’s use and information must not):
(a) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(b) be in any manner which could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of this Platform;
(c) be in any manner to phish or deceptively obtain information of other users of the Platform;
(d) impersonate or otherwise misrepresent the Client’s identity or affiliation with any other person or entity;
(e) be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users of the Platform;
(f) infringe any third-party’s rights or violate any Applicable Laws;
(g) contain any viruses or similar which could affect the integrity, operation or security of the Platform;
(h) create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers;
(i) damage the credibility or integrity of the Platform or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or
(j) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform.
6.4 Whilst using the Platform and the Services, the Client must not, and must ensure that its Authorised User’s do not:
(a) attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means;
(b) commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
(c) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses
(d) breach or violate any of the Provider’s policies;
(e) falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Platform;
(f) copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by these Terms and Conditions;
(g) use the Platform for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;
(h) attempt to circumvent payment of any fees in anyway;
(i) tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof;
(j) damage or modify the Platform or the Platform or any part thereof; or
(k) circumvent, disable or otherwise attempt to interfere with any security related features.
7. Platform
7.1 Maintenance
The Provider reserves the right to provide general maintenance services to the Platform including updating and upgrading the Platform during the Term as the Provider considers necessary from time to time. The Client acknowledges and agrees that the Platform may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.
7.2 Availability
The Provider shall use reasonable endeavours to maintain the availability of the Platform to the Client but provides no guarantee as to the availability and/or the uptime of the Platform. The Client acknowledges that Platform uptime can be dependent on the uptime of third-party integrations (in accordance with clause 7.3) The Provider will not be in breach of these Terms and Conditions if it fails to maintain the Platform’s uptime, nor will it be liable for any Loss suffered by the Client or any other person in this regard.
7.3 Third Party Integrations
(a) The Platform supports integrations with third-party services to enable the Platform to provide a number of features (such as data insights from data collected from these third-party services). In order for the Platform to integrate with such third-party systems:
(i) the Client must have an account set up with that third-party supplier and the Client is solely responsible for ensuring that is maintains its account at its own cost (including subscription fees); and
(ii) the Client grants access to the relevant accounts to the Provider and authorises and directs the Provider to transmit the Client Data as required to and from such third-party services in order for the Provider to provide the Services.
(b) The Client acknowledges that such third-party services are beyond the Provider’s reasonable control, and in the event that:
(i) a third-party service is experiencing issues or downtime; or
(ii) the Client is required to maintain an account with that third-party service and fails to do so,
this may also cause the Platform to become unavailable and/or not operate correctly and the Provider accepts no responsibility for any Losses or notification in this regard.
(c) Where information is transferred to or from a third-party service, the Provider will not be liable for any Loss arising from the use of that information by that third-party service. As the Platform pulls data from third-party dependencies (including data inputted by the Client on that third-party service) the Platform provides no warranties if the information display is incorrect due to an error of the data being pulled (for example if the Client inputs incorrect data).
7.4 Support
(a) The Provider agrees to provide technical support for the Platform to the Client during the Term on a request basis and only to Authorised Users. Technical support is limited to issues relating to network errors, software/bug errors or malfunctions or other software related incidents pertaining to the Platform (such as data corruption).
(b) The Client acknowledges that usage support, including training of use of the Platform is not included in the Fees. If the Client requires usage support training, then it may submit a request to the Provider for such training, and the Provider may accept or reject such request at its discretion. If the Provider accepts such request then it will provide a quote setting out the number of hours for the training and the additional fees involved.
8. Intellectual Property Rights
8.1 The Platform and Materials
(a) The Provider (or its relevant licensor as applicable) shall at all times retain all title, rights and interest in and to the Platform and Materials including:
(i) the Intellectual Property Rights subsisting in each;
(ii) any customisations of, and modifications to, the Platform and Materials to suit the Client’s individual needs;
(iii) data insights, benchmarks and other data information displayed on the Platform;
(iv) information or data, source codes and other information technology relating to or connected with the Services or Materials;
(v) marketing information relating to or connected with the Platform or Materials; and
(vi) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Platform,
however, excludes the Client Data.
(b) No right, title and interest in any of the Platform and Materials is transferred or granted to the Client except so far as expressly stated in these Terms and Conditions. The Client must not use the Platform in any way that is inconsistent with the Provider’s ownership.
(c) For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
8.2 Client Data
(a) Subject to the limitations of the Platform as described in clause 9, the Client (or its appropriate licensors) shall at all times retain ownership of the Client Data including the Intellectual Property Rights subsisting in it.
(b) The Client is solely responsible for the uploading of any Client Data. The Provider may, in its absolute discretion, refuse to accept the upload of Client Data to the Platform. The Client agrees that the Provider shall not be liable to the Client for any Loss or damage the Client may suffer as a result of this.
(c) The Client hereby grants to the Provider an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations (including to provide the Services) and the exercise of the Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions.
(d) The Client also grants the Provider an irrevocable, non-exclusive licence to use the Client Data as non-personally identifiable data in aggregated and deidentified formats where the data provides no identifying, referencing or implication of an association with the Client, for any purpose, including without limitation for display on the Platform, improving the Platform, bench marking, research and marketing analysis, surveys, reports and studies, and to measure any metrics associated with the Client’s use of the Platform. The Client acknowledges that where the Provider uses Client Data in aggregated and deidentified formats to create data insights or other material, the ownership of such data insights and other material will automatically vest in the Provider.
(e) The Provider warrants that:
(i) it will only use the Client Data in accordance with these Terms and Conditions and the Provider’s Privacy Policy in place from time to time; and
(ii) it will not sell, rent or lease the Client Data to any third-party.
(f) The Client warrants to the Provider that:
(i) the Client owns or has the necessary licenses, authorisations and consents to transmit such Client Data through the Platform, and to grant such licences to the Provider as set out under this clause 8.2; and
(ii) that any Client Data provided, and the use of and licenses to such Client Data granted to the Provider will not infringe any third-party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third-party; and
(iii) the Client Data will not:
A. breach the provisions of any law, statute or regulation;
B. give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any applicable law.
9. Restriction of access to Client Data
9.1 Subject to the other terms of this clause, in the event that:
(a) the Client fails to pay any part of the Fees or other monies payable by the Client under or in connection with these Terms and Conditions by its due date; or
(b) these Terms and Conditions and/or the Client’s access to the Platform is suspended, restricted or terminated; or
(c) the Client closes their account or their subscription or terminates these Terms and Conditions,
the Client’s access to the Client Data will be immediately revoked and the Client’s Account will become inactive. For the avoidance of doubt the Client will have no access to the Client Data (including access to download any Client Data that is available for them to download) while the Client’s Account is inactive.
9.2 Prior to termination of these Terms and Conditions or the Client’s Account otherwise becoming inactive, the Client is solely responsible for downloading any Client Data that is available for download from the Platform. Only the Client Data that is made available in the format as specified on the Platform may be downloaded. The Provider does not guarantee, represent or warrant that all of the Client Data will be able to be downloaded as not all Client Data is made available for download. The Provider will not be providing a download of the Client Data once the Client’s Account becomes inactive.
10. Warranties
10.1 The Client warrants:
(a) that it has the legal right and authority to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions;
(b) that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms and Conditions.
10.2 All of the parties' warranties and representations in respect of the subject matter of these Terms and Conditions are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.
11. Disclaimer
11.1 The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services at its own risk and is solely responsible and liable for how they use the Services.
11.2 Without limiting clause 11.1, the Client acknowledges and agrees that:
(a) the Provider does not guarantee continuous, uninterrupted or secure access to its Platform or that any information provided by the Provider is up to date and accurate;
(b) the Provider does not warrant that the use of the Platform will result in the Client or its Authorised Users achieving any specific result;
(c) the Provider makes no representations about the suitability of the Platform for any purpose;
(d) the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time, or that data backups (if any) will readable, or that any Client Data is able to be backed up or recovered. Unfortunately, data loss happens and the Provider will not be liable for any Loss the Client suffers in the event that Client Data is lost, for example if a webhost database is corrupt and Client Data is corrupt;
(e) whilst best endeavours will be made to ensure the accuracy of the data insights and analysis, the Provider cannot guarantee the accuracy, currency, suitability, reliability and availability of the Platform and any content gained within;
(f) the Platform involves computational and underlying analysis that is based on input provided by the Client and from integrated third-party services. The Client is solely responsible for the reliability, accuracy and completeness of such input provided. It is the Client’s sole obligation to ensure that the Client inputs the correct data. The Provider takes no responsibility if the data insights or outcome of the Platform is inaccurate, incomplete or non-reliable because it is based on inaccurate, incomplete or non-reliable input provided by the Client;
(g) the information provided on and in the Platform is general information and is not in the nature of financial, legal or any form of advice. The Client should obtain advice before making any decision based on the Platform;
(h) the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Platform at any time, without notice;
(i) the Provider may remove or delete the Client Data after the termination of these Terms and Conditions. It is solely the responsibility of the Client to download any Client Data that is able to be downloaded before the expiry or termination of these Terms and Conditions;
(j) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from defects, errors and bugs; and
(k) the Provider will maintain appropriate technical and organisational measures to protect the security of the Client Data. However, the Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by the Client is transmitted solely at the Client’s risk. The Client is solely liable for their Client Data.
12. Limitation of Liability
12.1 Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
12.2 Without limitation to clause 12.1, to the extent permitted by law, the Provider excludes all liability to the Client and Authorised Users and/or anyone else for Losses arising in any way in connection with the Platform or its use and/or the Services and/or these Terms and Conditions, including but not limited to Losses suffered as a result of:
(a) any planned or foreshadowed system downtime of the Platform;
(b) non-performance of the Platform;
(c) any reliance on the Platform (or any information provided from the Platform);
(d) any incorrect data entry or information made by the Client or Authorised Users on the Platform;
(e) any incorrect data or content, errors, mistakes or inaccuracies on the Platform;
(f) any loss or corruption of Client Data at any time;
(g) any defects, errors and bugs in the Platform;
(h) any unauthorised access to or use of the Platform;
(i) any interruption or cessation of transmission to or from the Platform;
(j) use of the Platform which is contrary to law, these Terms and Conditions or any other agreement between the Client and the Provider;
(k) unauthorised third-party access to the Platform or the Services;
(l) any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Platform by any third-party; and/or
(m) loss of privacy and confidential information.
12.3 Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by the Provider of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Client to the Provider under these Terms and Conditions in the one-month period preceding the matter or event giving rise to the claim.
12.4 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.
12.5 If the Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider's total liability to the Client for that failure is limited to, at the option of the Provider the resupply of the Services or the payment of the cost of resupply.
12.6 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
12.7 Without limitation to the other terms of this clause, the Provider excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.
12.8 Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, the Client’s Authorised Users or the Client's employees, agents or contractors.
12.9 Where the Client is or may be entitled to recover from a third-party any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, the Client must:
(a) use its best endeavours to recover that sum before making the claim;
(b) keep the Provider at all times fully and promptly informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
12.10 The Provider will not be liable for any claim under or in relation to or arising out of these Terms and Conditions including a breach of any warranty unless:
(a) the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
(b) that claim has been denied in whole or partly by the relevant insurer.
12.11 If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and Conditions and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of these Terms and Conditions.
13. Indemnity
13.1 Except to the extent caused by the breach of these Terms and Conditions by the Provider, the Client indemnifies and releases the Provider, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
(a) the Client or the Client’s Authorised User's use of the Services;
(b) the supply, suspension, restriction or cancellation of the Client or the Client’s Authorised User’s access to the Platform;
(c) the Client or the Client’s Authorised User's breach or negligent performance or non-performance of these Terms and Conditions;
(d) from the Client or the Client’s Authorised User’s violation of any applicable law;
(e) any claim made against the Provider and/or the Client and/or its Authorised Users by a third-party arising out of or in connection with these Terms and Conditions, to the extent that such claim arises from the act or omission of the Client and/or its Authorised Users or out of the breach, negligent performance or failure or delay in performance of these Terms and Conditions by the Client;
(f) any claim made against the Provider for actual or alleged infringement of a third-party’s rights arising out of or in connection with the Client Data; and/or
(g) the enforcement of these Terms and Conditions by the Provider.
13.2 The Client must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
13.3 It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.
13.4 The indemnities in this clause:
(a) are continuing obligations of the Client, independent from its other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.
13.5 The Provider’s liability under this indemnity is limited under clause 12.
14. Force Majeure Event
14.1 The Provider will not be in breach of these Terms and Conditions or liable to the Client for any Loss incurred by that other party as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms and Conditions where such prevention, hindrance or delay results from a Force Majeure Event.
14.2 If a Force Majeure Event occurs, the Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
14.3 On providing the notice in clause 14.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
14.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
15. Termination and Suspension
15.1 Termination by Client
The Client may terminate their Subscription by giving written notice to the Provider where the Provider breaches these Terms and Conditions and fails to rectify the breach within 14 days of being given a notice to do so by the Client.
15.2 Suspension & Termination by Provider
(a) The Provider may terminate the Client’s Subscription at any time without cause by giving written notice to the Client. Termination will take effect at the end of the period which the Client has paid the Subscription Fee to.
(b) The Provider may immediately suspend the Client’s (and the Client’s Authorised Users’) access to all or part of the Services, including access to the Client Data on the Platform where:
(i) it is reasonably necessary for security, technical, copyright or operational reasons;
(ii) the Client breaches any term of these Terms and Conditions;
(iii) the Client violates the rights of any third-party or the Provider;
(iv) the Provider reasonably believes that the Client is engaged in illegal or fraudulent use of the Services;
(v) the Provider reasonably believes that the Client Data is inappropriate or unlawful;
(vi) the Provider reasonably believes that the Client is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or
(vii) the Client suffers an Insolvency Event.
16. Effects of termination
16.1 On termination of these Terms and Conditions:
(a) the right to use the Platform is revoked and the Client’s access will be terminated;
(b) the Client must cease using, and must ensure its Authorised Users cease using the Platform or any embed codes as they relate to the Platform; and
(c) all amounts payable by the Client to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim (there is to be no pro-rata refund for a part month).
16.2 The terms of clause 9 will apply on termination with respect to the Client Data.
16.3 Any clause of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
17. Confidentiality and Privacy
17.1 Confidential Information
(a) The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:
(i) disclose the Confidential Information of the other party to any person; or
(ii) use the Confidential Information of the other party for their own or a third-party’s benefit.
(b) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of these Terms and Conditions.
(c) If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.
(d) In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
(e) In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.
17.2 Privacy
(a) In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Client Data or otherwise provided to, collected or received by either party in connection with the Platform, the Client must comply with:
(i) the Privacy Legislation, and Personal Information in accordance with the Privacy Legislation (as it applies to that party); and
(ii) the applicable Policies and guidelines of the Provider as made known from time to time.
(b) The Client warrants and represents that all Personal Information that it provides to the Provider complies with this clause and these Terms and Conditions at all times. Immediately upon the Client becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the Client must inform the Provider of this.
(c) If either party receives a request for access to or correction of any Personal Information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information it must notify the other party.
18. Notices
18.1 All notices authorised or required under these Terms and Conditions to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
18.2 The following shall constitute proof of receipt:
(a) proof by posting by registered post; or
(b) proof of dispatch by email.
18.3 Receipt of a notice given under these Terms and Conditions will be deemed to occur:
(a) in the case of a communication sent by pre-paid registered post, on the third business day after posting;
(b) in the case of an email, on the business day immediately following the day of dispatch.
18.4 If a notice is sent via post, it must also be sent via email.
19. Special Conditions
19.1 Any special conditions as agreed between the parties in writing (Special Conditions) will apply to these Terms and Conditions. To the extent of any inconsistency or conflict between the Special Conditions and the other terms of these Terms and Conditions, the Special Conditions shall prevail
20. Testimonial and publicity rights
20.1 If the Provider requests, the Client will provide a testimonial as to the quality of work the Provider has delivered. The Provider may use this testimonial, alongside the Client’s business name and logo on the Provider’s website or other marketing materials (including commercial proposals).
20.2 In consideration of the Provider providing the Services, the Client also agrees that it may be identified as a client on the Provider’s website or other marketing materials (including commercial proposals), and that the Provider may use the Client’s business name and logo for this purpose which the Client must provide, and the Client also agrees that the Provider may develop a case study featuring the work that the Provider/the Client has done for the Client and that this may be used for publicity purposes. The Provider may use the Client’s business name and logo for this purpose or may alternatively (at its discretion) post it anonymised.
21. General Provisions
21.1 Variation
An amendment or variation of any term of these Terms and Conditions must be in writing and signed by each party.
21.2 No Waiver
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 21.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
21.3 Assignment, Novation and Other Dealings
(a) The Provider may assign or novate any rights that arise out of or under these Terms and Conditions without the consent of the Client.
(b) Any rights of the Client that arise out of or under these Terms and Conditions are not assignable or capable of novation by the Client without the prior written consent of the Provider, whose consent must not be unreasonably withheld.
21.4 Counterparts
These Terms and Conditions may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms and Conditions by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms and Conditions. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email. The parties consent to electronic execution of these Terms and Conditions.
21.5 Costs
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms and Conditions.
21.6 Severability
(a) If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 21.6(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms and Conditions.
21.7 No Merger
On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
21.8 Survival
Any clause which by its nature is intended to survive termination or expiry of these Terms and Conditions will survive such termination or expiry.
21.9 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
21.10 Time of the Essence
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
21.11 Relationship of the Parties
(a) Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
(b) Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
21.12 Remedies Cumulative
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
21.13 Entire agreement
These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
21.14 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
21.15 Governing Law and Jurisdiction
(a) These Terms and Conditions is governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 21.15(b) on the basis that:
(i) any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii) the courts described in clause 21.15(b) do not have jurisdiction.