By using DataBoss you agree to the terms and conditions set out in this document.
1.1 For the purposes of this agreement the following terms are defined as:
2.1 This Contract commences on the date payment is processed and continues for 365 days from that date.
3.1 Subject to the terms of this Contract and the Subscriber’s performance of its obligations, the Company hereby grants to the Subscriber a non-transferable license during the 365 day subscription to access and use the Products and the Product Data in the subscribed postcodes, within the Subscriber’s enterprise only and solely for the Subscriber’s internal business purposes in the subscribed postcodes.
3.2 The Subscriber agrees that it will not permit or allow any person to access or use the Products or the Product Data unless they are employed by the subscriber and undertake their work for the subscriber from the site listed on the Subscriber Account without having first obtained express prior written consent of the Company to do so.
3.3 The Subscriber acknowledges and agrees to use the Products and the Product Data solely for the purpose for which they are intended, and in accordance with all Laws. Except as expressly permitted under this Contract or to the extent permitted by Law, the Subscriber and its employees and representatives must not, or encourage any person or entity to:
4.1 The Subscriber will access the Products in the manner set out in the applicable Product Terms set out below. The Subscriber acknowledges and agrees that, in the event that the Company provides the Subscriber with any account, identification numbers and/or passwords, it:
4.2 The Company reserves the right to change or refine the features and functionality of any Product; provided that the Products will at all times retain those basic features described on the Subscriber Account or within the Product’s Terms and Conditions.
4.3 The Subscriber acknowledges that the Company will not be obliged to provide access to any Product or Product Data to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.
4.4 The Subscriber will be fully responsible and liable for any act or omission of any of its employees or agents.
5.1 The Subscriber will pay fees as set out in the Pricing Plans. All fees, when paid, are non-refundable, even if the Subscriber stops using the Products or the Product Data for any reason.
5.2 Except as expressly provided for in the Subscriber Account, all Products are GST exclusive. If provision of the Products under this Contract is subject to GST, the Subscriber must pay to the Company an additional amount equal to the relevant fee multiplied by the applicable GST rate. Such additional amount is payable at the same time as the related fee.
6.1 The Company hereby represents and warrants that the Products will have those features described in the Subscriber Account or within any applicable Product Terms, and that it will use commercially reasonable efforts to ensure that the Products are accessible in accordance with these General Terms and Conditions and any Product Terms. In the event of any breach of this warranty, the Subscriber agrees, as the Company’s and its service providers’ sole and exclusive obligation and the Subscriber’s sole and exclusive remedy, to use commercially reasonable efforts to modify, correct or provide access to the relevant Product.
6.2 The warranty set forth in clause 6.1 is in lieu of any other warranties, and to the fullest extent permitted by Law (subject to clause 6.3), all other warranties are hereby excluded, and the Company and its service providers hereby expressly disclaim all warranties:
6.3 To the extent that the Competition and Consumer Act 2010 implies any warranties under this Contract, then the Company’s and its service providers’ liability in respect of such implied warranty is limited:
6.4 The Products and the Product Data, including, without limitation, any information, data, calculations and estimates contained therein, are subject to change without notice. The Products and the Product Data are provided to the Subscriber on an “as is, as available” basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for particular purposes, title, non-infringement, security, availability, accuracy, or otherwise.
6.5 The Subscriber acknowledges that it has read, understands and accepts and agrees to the additional terms, conditions and limitations of the Company’s suppliers set forth on the Product Terms and the Subscriber Account, if any.
7.1 To the maximum extent permitted by Law, in no event will the Company’s and its service providers’ aggregate liability to the Subscriber exceed the lesser of one hundred dollars (A$100) and the amount of fees actually paid by the Subscriber to the Company under this Contract.
7.2 To the maximum extent permitted by Law, in no event will the Company and its service providers be liable for
8.1 No Confidential Information may be disclosed by the Subscriber to any person or entity except:
8.2 The Subscriber must not use Confidential Information except for the purpose of exercising its rights or performing its obligations under this Contract.
8.3 Clauses 8.1 and 8.2 and do not apply to Excluded Information.
8.4 Notwithstanding clauses 8.1 and 8.2, the Subscriber may disclose parts of the Product Data, or conclusions or summaries of information based on the Product Data, provided that the Subscriber has first obtained the Company’s prior written consent for such disclosure and the Subscriber gives the Company credit as the source for the underlying data in a manner reasonably instructed by the Company.
8.5 The Subscriber will take any action that is necessary to prevent or remedy any breach of the Subscriber’s confidentiality obligations or other unauthorized disclosure of Confidential Information.
8.6 The Subscriber acknowledges that due to the unique nature of the Confidential Information, any breach by the Subscriber of its obligations under this clause 8 would result in irreparable harm to the Company and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Company and its service providers will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Company and its service providers may have at Law
8.7 The Subscriber will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.
8.8 The Subscriber may not make press or other announcements or releases relating to this Contract and the transactions that are the subject of this Contract without the Company’s prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Subscriber by Law or by a stock exchange with which the Subscriber is listed.
8.8 Except as otherwise agreed or duly required by Law or any regulatory authority, no Party will disclose the terms of this Contract to any person or entity other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
9.1 In the event that the Subscriber (or its agents or employees) breaches any term of this Contract, the Company may, at its election, do one or any of the following:
9.2 The Company and its service providers reserve the right to suspend or terminate the Subscriber’s access to the Products in circumstances where:
9.3 If any use is made of the Products or the Product Data by any person or entity other than the Subscriber and such use is attributed to the act or default of the Subscriber, then without prejudice to the Company’s other rights and remedies the Subscriber will immediately be liable to pay to the Company an amount equal to the charges which such person or entity would have been obliged to pay had the Company granted a licence to the unauthorised user at the beginning of the period of the authorised use.
9.4 Either Party has the right to terminate this Contract, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:
9.5 In the event that the Subscriber fails to rectify any breach within thirty (30) days of being notified in writing of the breach by the Company in accordance with clause 9.4(b), the Company may, at its election, accept the Subscriber’s failure to rectify as a repudiation of this Contract.
9.6 Termination of this Contract will not act as a waiver of any breach of this Contract and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Contract. Neither Party will be liable to the other for damages arising by reason of termination of this Contract in accordance with its terms. Either Party’s termination of this Contract will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.
10.1 The Subscriber will defend, or at its option settle, any third party claim or suit brought against the Company and its service providers on the basis of any breach by the Subscriber of this Contract (or any act which, if true, would be a breach of this Contract) or any use or reliance by the Subscriber of or on any Product or Product Data or any representations or promises made by or for the Subscriber to others due to or based on any Product or Product Data, and will pay any final judgment entered against the Company and its service providers or any settlement of such claim or suit and any costs incurred and recovered in such negotiations and litigation will be to the account of the Subscriber.
11.1 All notices hereunder will be in writing addressed to the Parties at the respective addresses shown on the Subscriber Account.
11.2 Notice will be deemed given:
11.3 A Party may change its address for service of notices under this clause by giving written notification of the new address to the other Party.
12.1 The Subscriber agrees to comply with the terms of the Privacy Act 1988 (as well as any other State or Territory statutes which regulate the use of personal information in each respective State or Territory) and the Company’s Privacy Policy at all times when using of any of the Company’s Products or Product Data.
13.1 No right under this Contract will be deemed to be waived except by notice in writing signed by the Party to be bound.
13.2 This Contract will be governed by and construed in accordance with the Laws in force in the State of Victoria, Australia. Each Party submits to the exclusive jurisdiction of the courts of that place.
13.3 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions on this Contract will be binding unless in writing signed by each Party except as provided by this clause. Where the parties agree to vary the level, type, description or number of subscription packages, users, logins and Products as described in the Subscriber Account, such a variation will be binding and effective upon written acceptance of the variation. For the avoidance of doubt, written acceptance includes email and online notification of a Party’s acceptance.
13.4 The Subscriber may not assign this Contract without the Company’s written consent. The Company may assign this Contract or any part of this Contract, or any right or obligation under this Contract, without notice to or the consent of the Subscriber.
13.5 The Subscriber warrants that it has not relied on any representation made by the Company which has not been expressly stated in this Contract or upon the descriptions or allusions or specifications contained in any document including any catalogue or other material produced or made available by the Company.
13.6 The Company will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of the Company (whether happening in the Commonwealth of Australia or elsewhere, including acts of God, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data).
13.7 If the whole or any part of a provision of this Contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Contract has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Contract or is contrary to public policy.
13.8 Nothing contained or implied in this Contract constitutes one Party the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.
13.9 The rights and remedies provided in this Contract are in addition to other rights and remedies given by Law independently of this Contract.
13.10 This Contract constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
13.11 To the extent of any inconsistency between these General Terms and Conditions and any of the Product Terms, the Product Terms will prevail.