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
“Company” means Stimulus
Australia Pty Ltd ACN 137 237 668 trading as DataBoss
“Confidential Information” means
all proprietary information accessed by the Subscriber including but not
limited to data, technology, programs or algorithms.
“Contract” means this agreement.
“Data” means all data and maps within www.databoss.com.au and on the servers maintained by DataBoss.
“Effective Date” means date and time that the subscriber
pays.
“Insolvent” means, with respect
to an entity, that such entity is or states that it is insolvent, is unable to
pay its debts as they come due, is in liquidation, is under administration or
has a controller appointed to its property, ceases conducting business in the
normal course, is subject to any arrangement to protect itself from creditors
or dissolves.
“Law” means common law,
principles of equity, and laws made by parliament at all levels.
“Party” and “Parties” means the
Company and the Subscriber.
“Personal Information” means
information about an individual whose identity is apparent, or can reasonably
be ascertained from the information.
“Postcode” refers to the
Australian Statistical Geography Standard Postal Area, not the Australia Post
postcode area.
“Plan” refers to the pricing plans
and data listed under them in the Plans page.
“Privacy Policy” means the Company’s privacy
policy located at www.databoss.com.au.
“Product Data” means any data or
results or market share analyses, index results or alerts, contained within or
provided through the Products.
“Products” means data or services
listed on the Subscriber Account.
“Subscriber” is the person or entity that has
paid. Each subscriber is provided one login access which may be used by agents
and employees of the subscriber.
“Subscriber data” means all data
uploaded by the Subscriber.
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:
(a) decompile, disassemble, reverse compile or
otherwise reverse engineer all or any portion of the Products, including any
source code, object code, algorithms, methods or techniques used or embodied
therein;
(b) modify, duplicate or
create any derivative works based upon the Products or the Product Data;
(c) distribute, resell, disclose, market, publish,
rent, lease, assign, incorporate into any database, sublicense or otherwise
transfer any Product or Product Data in any form to any third party, or use the
Products or the Product Data on behalf of or for the benefit of any third
party;
(d) remove or alter any
copyright, trademark, logo or other proprietary notice or label appearing on or
in the Products or the Product Data;
(e) data mine, scrape,
crawl, email harvest or use any process or processes that send automated
queries to the Products or the Product Data;
(f) incorporate any portion of the Products or the
Product Data into any other materials, products or services that are not
intended for the Subscriber’s internal business use; and
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:
(a) bears sole responsibility
for protecting all identification numbers and passwords;
(b) will not provide such
identification numbers and passwords to any third party;
(c) will remain fully
responsible and liable for any authorised or unauthorised use of any
identification numbers and passwords;
(d) will for security
purposes change such identification and passwords periodically or as directed
by the Company from time to time.
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 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:
(a) that the Products or
the Product Data will meet the Subscriber’s requirements;
(b) that the Products or
the Product Data will be error-free;
(c) that if the Products and Product Data are
accessed via the Company’s Web site, that the Company’s Web site will function
in an uninterrupted manner, be available 24 hours a day, 6 days a week, or be
fully secure;
(d) if the Products are software installed by the
Company, that the software will be secure, timely, uninterrupted or error-free,
will operate in combination with any other hardware, software, system or data,
or will meet the Subscriber’s requirements or expectations;
(e) that any data stored
by the Company will be accurate, reliable or secure
(f) errors or defects will
be corrected, however the Company will endeavour to correct errors within a
reasonable time;
(g) regarding the use of
the Products or the resulting Product Data, in terms of correctness, accuracy,
reliability or otherwise;
(h) the Products will be
free of viruses or other harmful components however, the Company will use
reasonable endeavours to ensure that the Products will be free of viruses;
(i) that the statistical methods on which any of
the Products are based use appropriate or accurate assumptions, are fit for the
Subscriber’s particular purpose or are otherwise suitable for the Subscriber’s
use; or
(j) that the performance of the Products will not
be affected by data entry errors, including incorrect entries, double entries
or delayed entries, or incorrect or untimely data supplied by the Company’s
third party suppliers.
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:
(a) in the case of goods,
to any one or more of the following (as the Company and its service providers
may in their discretion determine):
(i) the replacement of the
goods or the supply of equivalent goods;
(ii) the repair of the
goods;
(iii) the payment of the
cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the
cost of having the goods repaired; or
(b) in the case of
services, to any one of the following (as the Company and its service providers
may in their discretion determine):
(i) the supplying of the
services again; or
(ii) the payment of the
cost of having the services supplied again, except as expressly provided
elsewhere in this Contract.
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
(a) any special,
consequential, indirect, incidental, punitive or exemplary damages of any kind,
or
(b) damages for any loss of profits or revenue,
loss resulting from interruption of business or loss of use or data, arising
out of or relating to this Contract or the subject matter hereof, however
caused, even if the Company and its service providers have been advised of or
should have known of the possibility of such loss. The Subscriber assumes the
risk in using the Products and the Product Data as well as total responsibility
for establishing such procedures
for data backup and virus checking as the Subscriber considers necessary.
8.1 No Confidential Information
may be disclosed by the Subscriber to any person or entity except:
(a) employees of the Subscriber
requiring the information for the purposes of this Contract who
(i) are aware of the
confidentiality obligations imposed in this clause 8 and
(ii) have entered into
written confidentiality agreements with the Subscriber which require such
employees to comply with confidentiality obligations no less restrictive than
those set forth in this clause 8;
(b) to the extent the Subscriber
is required to do so by Law; or
(c) to the extent the Subscriber
is required to do so in connection with legal proceedings relating to this
Contract.
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:
(a) suspend or terminate
the Subscriber’s access to the Products or Products Data immediately upon
written notice to the Subscriber; and
(b) commence proceedings
against the Subscriber for any loss or damage the Company suffers as a result
of the breach; and
(c) refer the matter (including the Subscriber’s
name and contact details) to any debt collector or other third party to assist
the Company in collecting any fee not paid to the Company under the terms of
this Contract, including but not limited to conducting any consumer credit
searches or listing the Subscriber with a credit reporting agency.
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:
(a) the Company or its service providers reasonably
believe that the Subscriber (which includes its agents or employees) has used
or disclosed the Products, Product Data or other Confidential Information in a
manner not permitted under this Contract or otherwise has materially breached
this Contract, or
(b) an event of force
majeure occurs that affects the Company’s ability to provide the Products or
Product Data.
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:
(a) the other Party
becomes insolvent; or
(b) the other Party
commits a breach of this Contract, and
(i) the breach is material
and not capable of being cured, or
(ii) if the breach is
capable of being cured and the defaulting Party fails to cure the breach within
thirty (30) days of being notified in writing of the breach by the Party giving
the notice (“rectification period”).
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:
(a) in the case of hand-delivered mail upon
delivery or in the case of mail upon written acknowledgment or receipt by an
officer or other duly authorised employee, agent or representative or the
receiving Party (such receipt not to be unduly delayed or withheld),
(b) in the case of
ordinary mail on the fourth day after the date of posting;
(c) in the case of email
transmission upon the email being sent.
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.