Terms and Conditions

Welcome!

Welcome to the Network Map™ operated by Rosetta Analytics Pty Ltd (ABN: 41 649 895 474) (we, our or us). Our platform is accessible at networkmap.com.au, and through our other addresses and channels and mobile phone applications (Platform). These terms of use (Terms) apply to your use of and access to our Services.

1 Our Disclosures

1.1 Please read these Terms carefully prior to accepting them. By accepting these Terms, you agree that:

(a) based on your Plan level, you will be debited the Fees yearly in advance;

(b) your Plan will continue for rolling 12 month periods, subject to these Terms. It is your responsibility to notify us at least 30 days prior to the end of the then Term if you do not wish your Plan to extend for a further 12 months. If you don’t notify us, you will be charged a further Fee;

(c) we may amend the Services or Fees at any time with notice. If you do not agree to the change, you may terminate the Terms without penalty and we will refund any unused portion of Fees;

(d) you must pay us our losses caused by breach of the Licence granted by these terms, materials you provide to us, your breach of confidentiality, privacy, intellectual property rights and due to your negligence or willful misconduct;

(e) subject to your consumer rights, our Services are provided “as is” without any guarantees or warranties;

(f) subject to your consumer rights, we exclude and limit our liability as set out in clause 24 and our liability will not exceed the Fees paid by you in the past 12 months; and

(g) you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our Platform or in our promotional material.

2 Acceptance

2.1 You must be 13 years or older to use our Services.

2.2 These Terms:

(a) are between us and you, together the Parties and each a Party;

(b) set out the terms and conditions upon which we agree to grant you a right to use the Services; and

(c) are binding on you on and from the date on which you accept these Terms (Effective Date) until the date on which your Account and these Terms are terminated in accordance with the terms.

2.3 You accept these Terms by clicking a box indicating your acceptance.

2.4 We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you may terminate these Terms in accordance with clause 7.2.

2.5 If you are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.

3 Accounts

3.1 In order for you to access and use the Services you must create an Account on our Platform.

3.2 You must ensure that any information you provide to us, or we request from you, for your Account, is complete, accurate, up to date and you are authorised to provide this information to us.

3.3 You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.

3.4 It is your responsibility to keep your Account details confidential.

3.5 We are not responsible for the management or administration of your Account.

3.6 You are responsible for all activity on your Account.

4 Personnel

4.1 You may invite your Personnel to access the Services using your Account provided that you comply with these Terms and the Device limits as set out in clause 5.

4.2 The Software is not intended for and should not be used by anyone under the age of 13. You must ensure that any of your Personnel who access the Services using your Account are at least 13 years old.

4.3 You are responsible for compliance by your Personnel with these Terms= and for any activities on your Account by your Personnel.

5 Permitted Devices

5.1 You agree that the Licence permits you to access and use the Services in accordance with the number of permitted Devices, as set out in your Plan (if applicable).

5.2 You may, at any time, request for an increase in the number of Permitted Devices by changing the Plan type in your Account or by providing written notice of a change in Plan type (including by email) to us (Variation Request) and in which case clause 7.4 will apply.

6 Free Trials

6.1 We may offer you a Free Trial with limited features designed to allow you to evaluate the Services before signing up for a paid Plan.

6.2 We determine Free Trial eligibility in our sole discretion and we may limit eligibility to prevent abuse. If available, the Free Trial period will last for the period specified on the Platform and is subject to our right to change the trial period at any time without notice.

6.3 These Terms set out the terms and conditions of a Free Trial. In addition to these Terms, any Free Trial is subject to the Free Trial terms posted on our Platform at the time of the Free Trial.

6.4 We reserve the right to revoke the Free Trial and suspend your Account at any time in the event that we determine that you are not eligible or if you are found to be misusing the Services.

6.5 At the end of any Free Trial you will be provided the option to choose and sign up for a paid Plan. If you do not choose a Plan or do not pay the Fee at the end of the Free Trial, your access to the Services will finish at the end of the Free Trial period. The date you make payment, your Plan will start and the Free Trial will end.

7 Plans

7.1 Access to our Services will depend on the Plan type you choose as set out on the Platform, including the Fees, features and number of Devices.

7.2 You agree that we may modify our Plans (including Device numbers) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Plan, you may terminate these Terms by giving us notice in writing, in which case, clause 26.6 will apply.

7.3 Your Plan will commence on the on the day that you sign up for a paid Plan (Start Date) and will continue for 12 months (Initial Term), subject to extension (Term). The Term will automatically extend for further subsequent 12 month periods, unless:

(a) either Party provides written notice of termination at least 30 days prior to the end of the then Term; or

(b) these Terms are otherwise terminated in accordance with its terms.

7.4 You may request a change in Plan type by changing your Plan type in your Account or by providing written notice of a change in Plan type (including by email) to us (Variation Request):

(a) We will not be obliged to comply with a Variation Request unless we accept the Variation Request.

(b) If the Variation Request is for a decrease in the number of Permitted Devices, you must notify us at least 30 days prior to the expiry of the then 12 month Term and this change will take effect in the following 12 month period.

(c) If the Variation Request is for an increase in the number of Permitted Devices, we will not be obliged to comply with a change in Plan type unless you accept any variation to the Fee to effect the Variation Request (Fee Variation). You may accept the Fee Variation via your Account or in writing (including by email). After your acceptance, we will organise for the payment method linked to your Account to be charged the upfront pro-rata Fee Variation for your new Plan. We will apply the Fee Variation to any subsequent billing periods in the Term, which will be considered the new Fee for the purpose of these Terms. If you upgrade more than 5 days before the month end, the upgrade will become effective the next month. If not, the upgrade will apply to the following month. If your need to upgrade is urgent, please send us an email and we will use reasonable endeavours to action as soon as possible.

7.5 You may cancel your Plan at any time in the Account page (or similar) section of your Account settings. The cancellation will apply to the next 12 month Term provided that you must you cancel at least 30 days before the end of the then Term. If you cancel your Plan less than 30 days before the then Term expiry date, you will be charged the Plan Fee on the next Payment Date and the cancellation will become effective for the following year.

7.6 We are under no obligation to notify you prior to the end of the current Plan term.

8 Payment

8.1 You agree to pay us the Fees as set out in your Plan, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Platform.

8.2 Each Plan on our Platform is for a rolling 12 month period (Billing Cycle).

8.3 Once you have created an Account and chosen a Plan, you agree to pay the Fee set out on the Platform to access/use certain features on the Platform and benefit from your Plan. To the extent permitted by law, the Fee is non-refundable and non-cancellable once paid.

8.4 The Fee is payable in advance of the next Billing Cycle. The Fee will be charged upfront on a yearly basis on the calendar day corresponding to when you created your Account or if a Free Trial is available, on the day that you sign up for a paid Plan (Payment Date). In some cases, your Payment Date may change, for example, if payment is unable to be processed.

8.5 If you do not cancel your Plan in accordance with clause 7.5 at least 30 days before the end of the then Term, at the end of the then Plan Term, it will be renewed for another 12 months and we will deduct the Plan Fee using the payment method identified in your Account.

8.6 Any pro rata additional charges for Additional Services will be billed in advance (unless otherwise agreed between the Parties).

8.7 You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Platform.

8.8 You must ensure your chosen payment method has sufficient funds to pay the Fees.

8.9 We provide a number of payment methods on the Platform, including our third party payment processor, currently Stripe. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor. By making payment through a third party payment processor, you accept the applicable terms and conditions. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.

8.10 If any payment has not been made or is not successful in accordance with these Terms, we may (at our absolute discretion):

(a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;

(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and

(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.

8.11 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.

8.12 Except under clauses 2.4, 7.2 and 9.2, the Fees are non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Licence (or part thereof ).

9 Services

9.1 In consideration of payment of the Fees (as set out in the Plan), we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.

9.2 If we provide you with access to any new or beta services, you acknowledge that because of the developmental nature of such services, you use them at your own risk and we have no obligation to maintain or provide error corrections. Any new or beta services we provide you with access to are for evaluation purposes only and not for production use, and we may discontinue those services at any time at our sole discretion 9.3 You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may immediately terminate these Terms by giving us notice in writing, in which case, clause 26.6 will apply.

10 Licence and restrictions on use

10.1 Subject to the payment of any applicable Fees and your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for the Term in accordance with any Device limits, for your use and enjoyment of the Services, as contemplated by these Terms (Licence).

10.2 You must not (and must ensure your Personnel do not) access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights, including to;

(a) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(b) use the Services in any way that damages, interferes with or interrupts the supply of the Services;

(c) introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;

(d) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than your Personnel);

(e) carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;

(g) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(h) circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

11 Third Party Inputs

11.1 You agree that the provision of the Services may be contingent on, or impacted by, Third Party Inputs.

11.2 You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services (for example, Google Maps APIs).

11.3 To the extent that you choose to use such Third Party Inputs, you are responsible for:

(a) the purchase of;

(b) the requirements; and

(c) the licensing obligations,

(d) related to the applicable Third Party Input, including third party software and services.

11.4 You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 11.3.

12 Content

12.1 Through our Services, we allow you access to our Content. You must not, without our prior written consent or except as expressly permitted by these Terms, (1) copy or use, in whole or in part, any Content; (2) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or (3) breach any Intellectual Property Rights connected with the Content, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.

12.2 Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to access and view any Content in accordance with these Terms. All other uses are prohibited without our prior written consent.

12.3 You agree that the provision of our Services and our Content may be contingent on, or impacted by, Third Party Inputs used by us including information, forecasts, proposals and opinions provided directly by third parties or which is publicly availably. The Third Party Inputs may change at any time without warning and may not be accurate, complete or up to date which may affect our Services (including the Content).

12.4 You agree that the Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and our Services do not constitute legal, financial, merger, due diligence or risk management advice. Any person seeking to use the Content or our Services should prior to relying on it:

(a) independently verify and check the currency, accuracy, completeness, reliability and suitability of that information including the Content and the Third Party Inputs; and

(b) obtain independent and specific advice from appropriate experts or other sources and discuss with their independent adviser their personal investment objectives, financial situation and particular needs

12.5 While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law (including the Australian Consumer Law), we make no representations or warranty as to the accuracy, currency, completeness or suitability of the Content. The Content is subject to change without notice. We do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date. To the maximum extent permitted by law (including the Australian Consumer Law), we accept no Liability, and you waive and release us from any Liability and for any damage caused by your reliance on our Content or any unauthorised use.

12.6 The Platform is not government endorsed and must not be considered a substitute for government, industry or regulatory advice regarding the location of underground pipes, cables, overhead lines and other essential service utilities. You must not use the Platform, or any of the Content or our Services, for your commercial purposes relating to determining the location of underground pipes, cables, overhead lines and other essential service and utilities and to the maximum extent permitted by law, we will not be Lliable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with your reliance on our Services for this reason. If you need access to this type of information, we suggest you conduct your own independent investigations .regarding the location of these items including consideration of Dial Before You Dig (https://www.1100.com.au/) and Look Up and Live (https://esv.vic.gov.au/campaigns/look-up-and-live/, https://www.essentialenergy.com.au/safety/look-up-and-live (Industry Services). We do not control, endorse or approve, and are not responsible for, the content on the Industry Services or any advice provided by the Industry Services. We recommend that you make your own investigations with respect to the suitability of the Industry Services and to the maximum extent permitted by Law, we will not be Liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with your reliance on the information obtained from the Industry Services..

12.7 The Platform may contain links to websites operated by third parties. We do not control, endorse or approve, and are not responsible for, the content on those websites. To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with your reliance on links to third party websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party websites linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.

13 Additional Services

13.1 You agree that the provision of the Services is on an “as is” basis and that we do not agree to provide you with technical support services to enable you to use our Services.

13.2 You may request Additional Services, including support services and bespoke customisation to the scope or functionality of the Services, by providing written notice (including by email) to us or as set out on the Platform.

13.3 We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for us to undertake the Additional Services.

13.4 If you agree to the scope of services, proposal or statement of work (as applicable), for the Additional, then we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.

14 Privacy and Communication

14.1 You must, and must ensure that your Personnel, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.

14.2 We agree to handle any Personal Information you provide to us in accordance with any applicable Laws and our Privacy Policy.

14.3 We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.

14.4 We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.

15 Data Breach

15.1 To the extent the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us, if we become aware of a Customer Data incident (Customer Data Incident) we will:

(a) retain system logs and other information that may be relevant to the Customer Data Incident, or to assessing the cause or impact of the Customer Data Incident; and

(b) within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred.

15.2 Where you suspect that a Customer Data Incident has occurred, we will, within 30 days of receiving notice from you that you suspect that a Customer Data Incident has occurred, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred, and the costs of such assessment must be paid by you.

15.3 If, as a result of our assessments as set out in clauses 15.1(b) or 15.2, we believe a Customer Data Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will notify you of the Customer Data Incident by telephone or email and provide notice to the Office of the Australian Information Commissioner of such Customer Data Incident in accordance with the Notifiable Data Breaches Scheme and we will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Customer Data Incident. Alternatively, where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.

16 Confidential Information

16.1 Each Receiving Party agrees:

(a) not to disclose the Confidential Information of the Disclosing Party to any third party;

(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

16.2 The obligations in clause 16.1 do not apply to Confidential Information that:

(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;

(b) is authorised to be disclosed by the Disclosing Party;

(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or

(d) must be disclosed by Law or by a regulatory authority, including under subpoena.

16.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 16. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 16.

16.4 To the maximum extent permitted by law, you indemnify, and continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 16.

16.5 This clause 16 will survive the termination of these Terms.

17 Intellectual Property Rights

17.1 You agree that all Intellectual Property Rights in the:

(a) Services (including the Content);

(b) Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Services and any machine learning algorithms output from the Services); and

(c) Feedback,

will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

17.2 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, as contemplated by these Terms.

17.3 You must not whether directly or indirectly, without our prior written consent:

(a) copy or use, in whole or in part, any of our Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(c) reverse assemble, reverse engineer, reverse compile or enhance the Services;

(d) attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;

(e) breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;

(f) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;

(g) resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;

(h) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and

(i) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.

17.4 This clause 16.5 will survive the termination or expiry of these Terms.

18 Analytics

18.1 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a) does not contain identifying information; and

(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

18.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

19 Feedback

19.1 We may receive ideas, suggestions, recommendations or requests by you or any of your Personnel in connection with the Services.

19.2 You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.

20 Customer Data

20.1 We may allow you to upload content and information on or through our Platform and information relating to you may be stored or generated by the Services as a result of your use of the Services.

20.2 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:

(a) supply the Services (including for back-ups) to you (including to enable you, and your Personnel to benefit from the Services);

(b) diagnose problems with the Services;

(c) develop other services, provided we de-identify the Customer Data;

(d) enhance and otherwise modify the Services, and

(e) as reasonably required to perform our obligations under these Terms.

20.3 You must, at all times, ensure the integrity of the Customer Data and that your provision of, and use of the Customer Data is compliant with all Laws. You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.

20.4 You represent and warrant that:

(1) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in these Terms;

(2) the Customer Data is accurate and complete;

(3) the Customer Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

(4) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.

20.5 We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data.

20.6 You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

21 Warranties

21.1 You warrant and agree that:

(a) there are no legal restrictions preventing you from entering into these Terms;

(b) you are not and have not been the subject of an Insolvency Event;

(c) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;

(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;

(e) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms

(f) you will inform us if you have reasonable concerns relating to our provision of the Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;

(g) you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;

(h) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties (other than your Personnel as allowed under these Terms) without prior written consent;

(i) you will be responsible for the use of any part of the Services (including by your personnel as allowed under these Terms), and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;

(j) you have reviewed these Terms, including our Privacy Policy and Platform Terms , and you understand them and will use the Services in accordance with them;

(k) you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services; and

(l) you have all the hardware, software and services which are necessary to access and use the Services, including any required operating systems as set out on the Platform.

22 Australian Consumer Law

22.1 Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

22.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

22.3 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.

22.4 This clause 22 will survive termination or expiry of these Terms.

23 Indemnities

23.1 Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:

(a) your or your Personnel’s breach of clauses 10, 11, 14, 16, 16.5, 20 and 21;

(b) your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.

24 Limitations on Liability

24.1 Despite anything to the contrary (except for clause 23) and to the maximum extent permitted by law:

(a) neither Party will be liable for any Consequential Loss;

(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and

(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

24.2 This clause 24 will survive termination or expiry of these Terms.

25 Exclusions to Liability

25.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:

(a) your reliance on our Content;

(b) your reliance on third party website links available on our Platform;

(c) loss of, or damage to, any property or any injury to or loss to any person;

(d) the Computing Environment;

(e) your or your Personnel’s acts or omissions;

(f) any use or application of the Services by a person or entity other than you or your Personnel, or other than as reasonably contemplated by these Terms;

(g) any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;

(h) any Third Party Inputs;

(i) the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or

(j) any event outside of our reasonable control.

25.2 You acknowledge and agree that:

(a) you are responsible for all users using the Services, including your Personnel;

(b) you use the Services and any associated programs and files at your own risk;

(c) the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:

(1) transmissions over various networks; and

(2) changes to conform and adapt to technical requirements of connecting networks or devices;

(d) we may use third party service providers to integrate with the Services or to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;

(e) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;

(f) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses , errors or other conditions which could damage or interfere with data, hardware or software with which it might be used;

(g) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, or your Personnel; and

(h) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

25.3 This clause 25 will survive termination or expiry of these Terms.

26 Termination

26.1 Your Plan will commence on the on the day that you sign up for a paid Plan (Start Date) and will continue for 12 months (Initial Term), subject to extension (Term). The Term will automatically extend for further subsequent 12 month periods, unless:

(d) either Party provides written notice of termination at least 30 days prior to the end of the then Term; or

(e) the Agreement is otherwise terminated in accordance with its terms.

26.2 We may terminate these Terms at any time by giving 30 days’ notice in writing to you or via in Account notification provided that if we terminate prior to the end date of the then Term, clause 26.6 will apply.

26.3 You may terminate your Account by terminating your Plan as set out in clause 7.5.

26.4 These Terms will terminate immediately upon written notice by:

(a) us:

(1) if you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;

(2) if you fail to provide us with clear or timely instructions or information to enable us to provide the Services;

(3) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or

(4) if you are unable to pay your debts as they fall due; and

(b) you, if we:

(1) are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or

(2) are unable to pay our debts as they fall due.

26.5 Upon expiry or termination of these Terms:

(a) we will immediately cease providing the Services;

(b) we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of these Terms;

(c) we will provide any further disengagement services at our then current rates, and such further disengagement support services must be agreed in writing by the Parties;

(d) except as particularised in clause 26.6, you agree that any payments made by you for a Plan are not refundable;

(e) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;

(f) pursuant to clauses 26.4(a)(1), (2) or (4), you also agree to pay us additional costs arising from, or in connection with, such termination; and

(g) you must immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).

26.6 If these Terms or your Plan is terminated prior to the end of Term under clauses 2.4, 7.2 or 9.2, we will give you a pro rata refund of Fees paid for the period during which Services are not provided.

26.7 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

26.8 This clause 26 will survive the termination or expiry of these Terms.

27 GST

27.1 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

27.2 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.

27.3 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

27.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

28 General

28.1 Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.

28.2 Amendment: We may update these Terms at any time. Where we update these Terms, we will notify you via an in-Account notification or via email. If you do not agree to any amendment made to these Terms, you may terminate these Terms by giving us notice in writing, in which case, clause 26.6 will apply.

28.3 Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

28.4 Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

28.5 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

28.6 Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

28.7 Exclusivity: The Services will be provided to you on a non-exclusive basis.

28.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).

28.9 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.

28.10 Governing law: These Terms are governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

28.11 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.

28.12 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our webPlatform or in our promotional material, with your prior written consent.

28.13 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

28.14 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

29 Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:

Additional Services means any Services not set out in the Services description in the Plan which we agree to provide to you;

Account means an account accessible to you and your Personnel to use the Services in accordance with the Device limits;

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;

Business Day means a day on which banks are open for general bank business in Victoria, excluding Saturdays, Sundays and public holidays;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes information which:

(a) is disclosed to the Receiving Party in connection with these Terms at any time;

(b) is prepared or produced under or in connection with these Terms at any time;

(c) relates to the Disclosing Party’s business, assets or affairs; or

(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

Content means the content and materials on our Platform and which we make available to use through provision of our Services;

Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel into the Services or stored by the Services or generated by the Services as a result of your use of the Services;

Device means your computer or electronic device ;

Disclosing Party means the party disclosing Confidential Information to the Receiving Party;

Fee or Fees means those fees due and payable by you for the Services, as set out in your relevant Plan;

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel, whether made verbally, in writing, directly or indirectly, in connection with the Services;

Free Trial has the meaning given in clause 6;

Insolvency Event means any of the following events or any analogous event:

(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;

(b) a Party ceases, or threatens to cease, carrying on business;

(c) a Party is unable to pay the Party’s debts as the debts fall due;

(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;

(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or

(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;

Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;

Licence is defined in 10.1;

Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;

Plan means the plan you choose, including the Fees, billing cycle, features and number of Devices, as set out on the Platform and post purchase, as set out within your Account;

Privacy Policy means any privacy policy set out on our Platform;

Receiving Party means the party receiving Confidential Information from the Disclosing Party;

Services means the Software, access to our Platform and provision of the Content;

Software means our the software available on our Platform including all instructions in hard copy or electronic form and any update, modification or release of any part of that software which is accessible ;

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Effective Date and/or developed by or on behalf of you or your Personnel independently of these Terms.

30 Interpretation

In these Terms, unless the context otherwise requires:

(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(g) a reference to time is to local time in Victoria; and

(h) a reference to $ or dollars refers to the currency of Australia from time to time.

For any questions or notices, please contact us at:
Rosetta Analytics Pty Ltd ABN 41 649 895 474
Telephone: 1300 936 116
Email: support@rosettaanalytics.com.au
Last update: 23 September 2021
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