Prophet Terms

Terms of Service for Prophet Technologies Pty Ltd

This SUBSCRIPTION Agreement is between PROPHET TECHNOLOGIES PTY LTD (ACN 654 537 756) (“we”, “us”) AND the company or other person/entity named in the Subscription Order as the subscriber (“you”).

1.            Definitions

In this Agreement the following terms have the following meanings:

Authorised User” has the meaning set out in clause 3.2.

Content” means any content appearing at, or obtained from use of, the Service including all data generated through such use, and any reports of analyses generated as part of the Service but excludes Your Data.

Intellectual Property Rights” means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trade marks (whether registered or unregistered), rights in respect of inventions, patents, patent applications, designs (whether registered or unregistered), confidential information, know-how and domain names.

Our Confidential Information” means confidential information pertaining to us and our related entities, including without limitation, all information and content provided as part of the Service, but excludes any information which:

(a)        is in, or enters, the public domain, otherwise than as a result of a breach by you of this Agreement or other obligation of confidence; or

(b)        was developed independently by you, without the use of the whole or any part of our confidential information or Our IP.

Our IP” means;

(a)            Our Confidential Information;

(b)            all Intellectual Property Rights associated with the Platform, the Service and the Content (excluding Your Data); and

(c)            without limiting (b), includes all know-how in developing and providing the Service, including but not limited to system architecture, coding, design, content, templates, forms, metrics, interface, automated responses, reports, applications and system enhancements associated with the Platform, the Service and Content.

"Platform” means our analytics platform accessible at www.goprophet.io as it is amended and updated from time to time.

Service” means our operation of and provision of access to the Platform. Unless the context requires otherwise, references to the Service include references to the Platform.

Subscription” means the provision to you of the Service, further details of which are provided in the Subscription Order, and any amendments we and you may agree in writing from time to time.

Subscription Fees” means the fees for the Subscription as set out in the Subscription Order.

Subscription Order” means an order form (including an electronic order form or similar) setting out the details of the Subscription and unless the context requires otherwise, means your completed order form once we have accepted it.

Subscription Period” means the period commencing on the commencement date specified in the Subscription Order and ending on the end date specified in the Subscription Order,  subject to any amendment or extension we agree to, including but not limited to the Additional Subscription Period (as defined in clause 5.1), or as may be otherwise agreed between us in writing.

Your Data” means data and content that you provide in and for the purpose of using the Service (not being data that constitutes Content).

2.            Account creation

2.1           You are required to create an account to use the Service (“Account”). In doing so, you may be required to provide information including your contact details, email address, details of your preferred method of payment, and any further information that may be requested to protect the security of your Account.

2.2           You must ensure that any information you provide to us in connection with establishing or maintaining your Account is and will remain true, accurate and current.

2.3           You warrant that where you enter into this Agreement on behalf of a company or other organisation, you have authority to do so and are entitled to bind that company or other organisation to its terms.

3.            Subscription Access

3.1           Subject to and in consideration of your payment of the Subscription Fees, we grant you a non-exclusive, non-transferrable, non-sublicensable, limited right to access and use the Service for the Subscription Period in accordance with this Agreement.

3.2           You may allow up to 25 users, being persons within your organisation, to use the Platform (each an “Authorised User”). You are responsible for all activity of Authorised Users.  Where this Agreement imposes an obligation on you, unless the context requires otherwise, this obligation also applies to your Authorised Users. You agree that we shall be entitled to consider any person who registers as your Authorised User as being authorised to do so by you. [A1] [DK2] 

3.3           You must not permit:

(a)            anyone other than the Authorised User to use the Service, Platform or Content, including by allowing any other person to use the Account details or password; or

(b)            any other access through a single name being made available to multiple users on a network or otherwise.

You are responsible for preventing such unauthorised use. If you believe there has been unauthorised use, you must notify us immediately in writing.

3.4           You agree that your use of the Service and all Content will be for your business’ internal purposes and not for any form of resale, commercialisation or broader publication of any aspect.

4.            Payment

4.1           You must pay us the Subscription Fees for the amount(s) and payment intervals specified in your Subscription Order. We will give you a Tax Invoice in respect each such interval (whether it be on a monthly, annual or other basis, as set out in your Subscription Order).

4.2           Subscription Fees must be paid within 30 days from the date of invoice.

4.3           Payment must be effected in the manner described on the Platform or as otherwise agreed in writing between us.

4.4           All prices are in Australian Dollars unless otherwise notified.

5.            Renewal of Subscription Period

5.1           Unless you advise us otherwise in writing in accordance with this clause 5, your Subscription Period will automatically be extended following the expiry of the initial Subscription Period, for further periods of equivalent duration (“Additional Subscription Period”), and again at the end of each Additional Subscription Period.

5.2           Where your Subscription Period (including any Additional Subscription Period) is 12 months, then at (a) three months; and (b) again at one month; prior to the end of the relevant Subscription Period, we will notify you that your Subscription is about to come to an end on the date specified in the notice, and give you the opportunity not to renew the Subscription.

5.3           Unless you notify us that you do not wish to renew the Subscription prior to the commencement of each Additional Subscription Period, you will be treated as having agreed to continuing your Subscription for the next Additional Subscription Period.

5.4           Where your Subscription Period (as specified in the Subscription Order) is on a monthly basis, you must give us one month’s clear notice if you decide not to proceed with an Additional Subscription Period of one month, in order to end the Subscription and will be liable for an additional month if less than this required notice is provided. 

5.5           Where the Subscription Term has been extended by way of an Additional Subscription Period, the Subscription Fees payable for such Additional Subscription Period must be paid by you on or before the commencement date of that Additional Subscription Period. 

5.6           You authorise us to use the direct debit facility details of which you have provided to us for this purpose for the purpose of paying the Additional Subscription Period.[A3] [DK4] 

6.            Limitations on Use

6.1           Except as expressly permitted under this Agreement, you must not;

(a)            copy, reproduce, decompile, disassemble, reverse engineer, rent, lease, loan, sell or attempt to license the whole or any substantial part of the Service, Platform or Content;

(b)            use any software or tools or discovery technology or network monitoring to attempt to determine the Platform architecture, its algorithms, or extract information about usage, individual identities or users; nor

(c)            use any robot, spider, other automatic software or device, or manual process to monitor or copy any substantial part of the Platform without our prior written permission. 

6.2           Without limiting any other obligation under this Agreement, you must not without our prior written consent, share or permit any Content for the purposes of or in a manner that is able to be utilised or made accessible for usage in any Artificial Intelligence application or AI machine learning device.

6.3           You must not use the Service or any Content for any illegal, immoral, indecent or in appropriate purpose, including, without limitation, to defame or mislead any person, nor to transmit unsolicited emails/ spam.

7.            Reliance on information/advice

7.1           All Content and advice appearing at or accessible from the Service is provided in good faith.  While we have no reason to believe that any particular Content is or will be inaccurate, to the extent permissible we do not warrant the accuracy, adequacy or completeness of such Content.

7.2           We use reasonable endeavours to:

(a)            make Content and information obtained from the Service reasonably accurate; and

(b)            where an opinion is expressed by us in Content, to give that opinion with reasonable care and skill.

7.3           Subject to the above, you acknowledge that using the Service involves the generation and provision of data and analyses based on statistical and mathematical reasoning but relies also on matters of speculation, prediction and subjectivity. Accordingly, the outcomes of use of the Service may not be accurate or reliable.  The Service, Platform and Content are provided for information purposes only without us assuming any duty of care to you.  You accept that any Content is general information and not in the nature of advice. It is not intended to be used as a substitute for obtaining personalised professional advice from a qualified practitioner or other expert.

7.4           To the extent permitted at law, we disclaim any warranty as to the accuracy, completeness, currency or adequacy of the Service, the Platform and Content, and your use of any such information or materials is at your own risk.

8.            Intellectual Property Rights

8.1           We acknowledge that we make no claim to ownership of Your Data, which, as between you and us, will be owned by you. To the extent necessary for us to provide the Service to you, you grant us a non-exclusive licence to use such data.

8.2           You acknowledge that we own and will retain all Intellectual Property Rights associated with Our IP.  You are licensed to use such intellectual property rights to the extent necessary only to use the Service and any Content during the Subscription Period and subject to the limitations of this Agreement.

8.3           You acknowledge that we own the trade mark “Prophet” including any logo version thereof. These trade marks may not be used by you without our prior written consent.  

8.4           Except as expressly stated in this Agreement, nothing contained herein shall be construed as conferring on you any licence or right, by implication, estoppel or otherwise, under copyright or other Intellectual Property Rights.

8.5           You shall not disclose or make available Our Confidential Information to any third party. You must take all precautions and steps reasonably necessary to prevent unauthorised disclosure and unauthorised use of Our Confidential Information.

9.            Information Provided for Usage of the Platform

9.1           You are responsible for using our in-built data source library to connect your organisation, media and Customer Data to the Platform.  You will be able to invite Authorised Users to connect to a data source, as opposed to access to the entire Platform. [A5] [DK6] 

9.2           You acknowledge that failure to upload minimum data requirements as stipulated by us in the process of onboarding you, may result in delays in the provision of access to and utilisation of the Service.

9.3           You must not provide false, inaccurate or misleading information and data when using the Service (including in Your Data).

9.4           You must ensure that you comply with any obligations you may have under the Privacy Act (1988) (Cth) pertaining to any personal information you may disclose or obtain in the course of your use of the Service.

9.5           We may monitor usage of the Service and in the event of detecting any infringement of the rights hereby conferred or any other breach of this Agreement may notify you. You consent to the use of any data evidencing any such infringement.

9.6           You acknowledge that data, including Your Data (other than any personal information or information that identifies you as a customer) that you provide in the course of using the Service may be incorporated into the Platform for the purposes of generation of Content that may be used in future, including by other users of the Service.

10.        Training and education

10.1        We will provide either online or in-person [A7] [DK8] onboarding and capability training at or close to  the commencement of your Subscription, for Authorised Users who have been nominated as such at the time of the commencement.

10.2        We will make available an on-line help library that will be updated and amended from time to time as the Service changes.

11.        Additional Services

11.1        If and to the extent that you request and we agree to provide additional services not covered by this Agreement, these will be subject to our agreement and your payment of any corresponding fees and charges as notified to you from time to time.

12.        Errors, Corrections and Maintenance

12.1        We take reasonable steps to ensure that the Platform functions as intended with 99.9 per cent up time.  However you acknowledge that your access to the Platform may be disrupted as a result of a malfunction, updating, planned maintenance or repair, or for any reason within or outside our control.

12.2        To the extent permissible at law, we shall not be liable for any loss or damage caused or suffered as a result of the use of the Service, the Portal, Content, or of any partial or total breakdown of, or the inability to use, the Service. 

12.3        We do not represent or warrant that the Platform will be constantly available, error-free, free of viruses or other harmful components, or that defects will be corrected or that it will always be accessible. Except as set out herein, we do not warrant or represent that the information available on or through the Platform will be correct, accurate, timely, or otherwise reliable. We may make improvements and/or changes to its features, functionality, or content at any time and may schedule downtime for such purposes.

13.        Updates and changes

13.1        You accept that the Service may evolve and change over time. We reserve the right to modify, adapt, suspend or discontinue, whether temporarily or permanently any part of the Service and to update and amend the Service from time to time to improve or refine its functionality. To the extent permissible at law, we will not be liable to you or to any third party for any modification, adaptation, suspension or (subject to reimbursement of any Subscription Fees paid in advance prior to such discontinuance) any discontinuance of the Service.

14.        Third Party Content

14.1        Third party content may appear on the Platform or may be accessible via links. We shall not be responsible for and assume no liability for any infringement, mistakes, misstatements of law, slander, defamation, libel, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations, or any other form of content contained in any third-party content appearing on or linked to the Platform. You understand that the information and opinions in the third-party content is neither endorsed by nor does it reflect our beliefs.

15.        Security

15.1        We will take all reasonable steps to ensure the security of the Platform and Service.

15.2        You must take your own precautions to ensure that the process which you employ for accessing the Service does not expose your computer or other systems to the risk of viruses, malicious computer code or other forms of interference which may damage yours or others’ computer or other systems.

15.3        You shall be liable for all action taken by any person to whom you have provided access to your Account (whether or not they are an Authorised User) and agree to notify us immediately of any unauthorised use of your Account or other breach of security or privacy.

15.4        Please see our privacy policy for more information about how we treat personal information.

16.        Disclaimer

16.1        Except to the extent otherwise provided herein or required at law including under the Australian Consumer Law, the Service is provided on an “as is, as available” basis. We expressly disclaim all warranties unless required by law. To the maximum extent permitted by law, but without limiting any obligations that we may have under the Australian Consumer Law, we disclaim all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to:

(a)            any errors in or omissions from the Platform and any content, including but not limited to typographical errors and technical inaccuracies;

(b)            any third party web sites or content therein directly or indirectly accessed through links from the Platform, including but not limited to any errors in or omissions contained therein;

(c)            the unavailability of the Platform or any portion thereof; 

(d)            your use of the Platform or Services; or

(e)            your use of any equipment or third-party software in connection with the Platform.

17.        Limitation of liability

17.1        To the extent permitted by law, where required under the Australian Consumer Law or as otherwise set out herein, neither of us shall be liable to each other for any special, direct, indirect, incidental, or consequential damages of any kind whatsoever, including without limitation, legal fees, in any way due to, resulting from, or arising in connection with the use of or inability to use the Service or the content of the Platform. To the extent the above limitation of liability is prohibited under applicable law, and to the extent such liability may be limited thereunder, our obligation to you for damages shall not exceed the amount of any Subscription Fees paid.

17.2        To the extent permitted by law, in the event of a breach by us of any condition, warranty or obligation under this Agreement, our liability for breach shall be limited to (as determined by us in our discretion, acting reasonably):

(a)            the resupply of the Services;

(b)            payment of the cost of acquiring equivalent Services;

(c)            reimbursement of charges deducted in error; and/or

(d)            refund of Subscription Fees.

18.        Indemnity

18.1        To the extent permissible at law, you agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Services from and against any and all losses, expenses, costs and damages, including reasonable lawyer fees, resulting from any breach by you of this Agreement and any reliance on the Service and Content.

18.2        Subject to the limitations of the Service referred to herein, we agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Services from and against any and all losses, expenses, costs and damages, including reasonable lawyer fees, resulting from any breach by us of this Agreement.

19.        Termination for Cause

19.1        Either party may terminate this Agreement with immediate effect by giving the other party notice in writing if any of the following occur:

(a)            The other party is in breach of this Agreement, and such breach is not capable of remedy, or if capable of remedy, has not been remedied within 7 days of the non-defaulting party notifying the other to do so;

(b)            The other party ceases or threatens to cease conducting in its business in the normal manner, or one of its directors dies or becomes incapacitated other than temporarily; or

(c)            The other party becomes unable to pay their debts as and when they fall due, or becomes or threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.

19.2        In addition to clause 19.1, we may terminate this Agreement with immediate effect if any of the following occur:

(a)            You do or cause to be done any wilful or negligent act or omission which harms or is likely to harm our interests or reputation;

(b)            Your business is acquired by any other company or other person or entity; or

(c)            You, being a company, undergo a change in your majority shareholding or majority equity holdings of  or a change in control (where the definition of control is the same as s. 50AA of the Corporations Act);

20.        Upon termination or expiry

20.1        Upon termination or expiry of your Subscription, we will (in addition to any other right or remedy available to either of us) within a reasonable time delete all Your Data other than information about your Account that we may need to keep a record of for administrative or compliance purposes[A9] [DK10] .

21.        Promoting you as our customer

21.1        You agree that we may use your company’s name and logos for the purpose of promoting (at our website, in promotional and marketing materials, for case studies, as well as collaborative studies, in journals and analyses) the fact that you are or have been a customer of the Service and (without disclosing any confidential or personal information) in general terms the outcomes of your use of the Service.

22.        Subcontractors

22.1        You agree that we may use third party providers to provide various goods and services, including the necessary hardware, software, networking, storage and related technology required to run the Service.

23.        Unlawful Activity

23.1        We reserve the right to investigate complaints or reported breaches of this Agreement and take any action we deem reasonably appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.

24.        Validity

24.1        Nothing in this Agreement shall be construed as excluding or overriding any mandatory terms imposed under any legislation applicable to this Agreement or its performance.

24.2        If any provision of this Agreement shall be deemed unlawful, void or for any other reason unenforceable, then the provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

24.3        The Agreement may only be varied or amended by written agreement by both us and you.

25.        GST

25.1        In this clause, words and expressions which are not defined in this Agreement, but which have a defined meaning in GST Law (i.e., in legislation relating to Goods and Services Tax in Australia) shall have the same meaning as in the GST Law. Unless otherwise expressly stated, all prices or other amounts payable or considerable to be provided under this Agreement are exclusive of GST.

25.2        Where GST is payable by a supplier (within the meaning of the GST Law), or by the representative member for a GST group of which the supplier is a member, on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply, in addition to and at the same time that the consideration for the supply is to be provided under this Agreement.

25.3        The supplier shall deliver a tax invoice, or an adjustment note to the recipient before the supplier is entitled to payment of an amount of GST.

26.        Jurisdiction

26.1        This Agreement shall be governed by and construed in accordance with the laws operating in the State of Victoria, Australia, without giving effect to any principles of conflicts of law. The parties agree that any action at law arising out of or relating to this Agreement shall be filed only in the state or federal courts located in Victoria, Australia and the parties consent and submit to the non-exclusive jurisdiction of these courts for the purpose of litigating any such action.

27.        Entire agreement / Updates to agreement

27.1        This Agreement shall constitute the entire agreement between us and you in respect of the Service and shall override all previous understandings or representations.

27.2        This Agreement may be amended or updated from time to time, by posting updated Terms of Use on our website or otherwise notifying you. Amendments will not have a retrospective effect. If you do not agree to any amendments you may terminate your Subscription and must cease using the Service.

Agreement version February 2024.

 [A1]This will need an amendment to be in reference to the chosen tier (Analyser, Intelligence, Enterprise, Agency) which have different user triggers etc.   We might just need to amend these access numbers depending on what tier they chose.    [DK2]How about we say something along the lines of “You may allow up to the permitted number of users that corresponds with the subscription tier you have selected.”  [A3]This should only be when selected.   All of these will be invoiced either monthly, quarterly, bi-annually or annually.  [DK4]Proposed amendment - we preface with “Where you have elected to pay using direct debit”  [A5]These types of users won’t count towards their user-caps; they will only have access to the Data Source capability to connect platforms.  [DK6]Proposed amendment (“without limitation as to the number of users”)  [A7]Made changes to include OR rather than just one or the other.  [DK8]Noted  [A9]We will not delete this data for the purpose of feeling the model. If it’s been ingested by our Neural Networks, and therefore used to improve the model, we will cease to intake data once they’ve stopped their subscription.    [DK10]Please confirm that this data does not include any personal information?

This SUBSCRIPTION Agreement is between PROPHET TECHNOLOGIES PTY LTD (ACN 654 537 756) (“we”, “us”) AND the company or other person/entity named in the Subscription Order as the subscriber (“you”).

1.            Definitions

In this Agreement the following terms have the following meanings:

Authorised User” has the meaning set out in clause 3.2.

Content” means any content appearing at, or obtained from use of, the Service including all data generated through such use, and any reports of analyses generated as part of the Service but excludes Your Data.

Intellectual Property Rights” means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trade marks (whether registered or unregistered), rights in respect of inventions, patents, patent applications, designs (whether registered or unregistered), confidential information, know-how and domain names.

Our Confidential Information” means confidential information pertaining to us and our related entities, including without limitation, all information and content provided as part of the Service, but excludes any information which:

(a)        is in, or enters, the public domain, otherwise than as a result of a breach by you of this Agreement or other obligation of confidence; or

(b)        was developed independently by you, without the use of the whole or any part of our confidential information or Our IP.

Our IP” means;

(a)            Our Confidential Information;

(b)            all Intellectual Property Rights associated with the Platform, the Service and the Content (excluding Your Data); and

(c)            without limiting (b), includes all know-how in developing and providing the Service, including but not limited to system architecture, coding, design, content, templates, forms, metrics, interface, automated responses, reports, applications and system enhancements associated with the Platform, the Service and Content.

"Platform” means our analytics platform accessible at www.goprophet.io as it is amended and updated from time to time.

Service” means our operation of and provision of access to the Platform. Unless the context requires otherwise, references to the Service include references to the Platform.

Subscription” means the provision to you of the Service, further details of which are provided in the Subscription Order, and any amendments we and you may agree in writing from time to time.

Subscription Fees” means the fees for the Subscription as set out in the Subscription Order.

Subscription Order” means an order form (including an electronic order form or similar) setting out the details of the Subscription and unless the context requires otherwise, means your completed order form once we have accepted it.

Subscription Period” means the period commencing on the commencement date specified in the Subscription Order and ending on the end date specified in the Subscription Order,  subject to any amendment or extension we agree to, including but not limited to the Additional Subscription Period (as defined in clause 5.1), or as may be otherwise agreed between us in writing.

Your Data” means data and content that you provide in and for the purpose of using the Service (not being data that constitutes Content).

2.            Account creation

2.1           You are required to create an account to use the Service (“Account”). In doing so, you may be required to provide information including your contact details, email address, details of your preferred method of payment, and any further information that may be requested to protect the security of your Account.

2.2           You must ensure that any information you provide to us in connection with establishing or maintaining your Account is and will remain true, accurate and current.

2.3           You warrant that where you enter into this Agreement on behalf of a company or other organisation, you have authority to do so and are entitled to bind that company or other organisation to its terms.

3.            Subscription Access

3.1           Subject to and in consideration of your payment of the Subscription Fees, we grant you a non-exclusive, non-transferrable, non-sublicensable, limited right to access and use the Service for the Subscription Period in accordance with this Agreement.

3.2           You may allow up to 25 users, being persons within your organisation, to use the Platform (each an “Authorised User”). You are responsible for all activity of Authorised Users.  Where this Agreement imposes an obligation on you, unless the context requires otherwise, this obligation also applies to your Authorised Users. You agree that we shall be entitled to consider any person who registers as your Authorised User as being authorised to do so by you. [A1] [DK2] 

3.3           You must not permit:

(a)            anyone other than the Authorised User to use the Service, Platform or Content, including by allowing any other person to use the Account details or password; or

(b)            any other access through a single name being made available to multiple users on a network or otherwise.

You are responsible for preventing such unauthorised use. If you believe there has been unauthorised use, you must notify us immediately in writing.

3.4           You agree that your use of the Service and all Content will be for your business’ internal purposes and not for any form of resale, commercialisation or broader publication of any aspect.

4.            Payment

4.1           You must pay us the Subscription Fees for the amount(s) and payment intervals specified in your Subscription Order. We will give you a Tax Invoice in respect each such interval (whether it be on a monthly, annual or other basis, as set out in your Subscription Order).

4.2           Subscription Fees must be paid within 30 days from the date of invoice.

4.3           Payment must be effected in the manner described on the Platform or as otherwise agreed in writing between us.

4.4           All prices are in Australian Dollars unless otherwise notified.

5.            Renewal of Subscription Period

5.1           Unless you advise us otherwise in writing in accordance with this clause 5, your Subscription Period will automatically be extended following the expiry of the initial Subscription Period, for further periods of equivalent duration (“Additional Subscription Period”), and again at the end of each Additional Subscription Period.

5.2           Where your Subscription Period (including any Additional Subscription Period) is 12 months, then at (a) three months; and (b) again at one month; prior to the end of the relevant Subscription Period, we will notify you that your Subscription is about to come to an end on the date specified in the notice, and give you the opportunity not to renew the Subscription.

5.3           Unless you notify us that you do not wish to renew the Subscription prior to the commencement of each Additional Subscription Period, you will be treated as having agreed to continuing your Subscription for the next Additional Subscription Period.

5.4           Where your Subscription Period (as specified in the Subscription Order) is on a monthly basis, you must give us one month’s clear notice if you decide not to proceed with an Additional Subscription Period of one month, in order to end the Subscription and will be liable for an additional month if less than this required notice is provided. 

5.5           Where the Subscription Term has been extended by way of an Additional Subscription Period, the Subscription Fees payable for such Additional Subscription Period must be paid by you on or before the commencement date of that Additional Subscription Period. 

5.6           You authorise us to use the direct debit facility details of which you have provided to us for this purpose for the purpose of paying the Additional Subscription Period.[A3] [DK4] 

6.            Limitations on Use

6.1           Except as expressly permitted under this Agreement, you must not;

(a)            copy, reproduce, decompile, disassemble, reverse engineer, rent, lease, loan, sell or attempt to license the whole or any substantial part of the Service, Platform or Content;

(b)            use any software or tools or discovery technology or network monitoring to attempt to determine the Platform architecture, its algorithms, or extract information about usage, individual identities or users; nor

(c)            use any robot, spider, other automatic software or device, or manual process to monitor or copy any substantial part of the Platform without our prior written permission. 

6.2           Without limiting any other obligation under this Agreement, you must not without our prior written consent, share or permit any Content for the purposes of or in a manner that is able to be utilised or made accessible for usage in any Artificial Intelligence application or AI machine learning device.

6.3           You must not use the Service or any Content for any illegal, immoral, indecent or in appropriate purpose, including, without limitation, to defame or mislead any person, nor to transmit unsolicited emails/ spam.

7.            Reliance on information/advice

7.1           All Content and advice appearing at or accessible from the Service is provided in good faith.  While we have no reason to believe that any particular Content is or will be inaccurate, to the extent permissible we do not warrant the accuracy, adequacy or completeness of such Content.

7.2           We use reasonable endeavours to:

(a)            make Content and information obtained from the Service reasonably accurate; and

(b)            where an opinion is expressed by us in Content, to give that opinion with reasonable care and skill.

7.3           Subject to the above, you acknowledge that using the Service involves the generation and provision of data and analyses based on statistical and mathematical reasoning but relies also on matters of speculation, prediction and subjectivity. Accordingly, the outcomes of use of the Service may not be accurate or reliable.  The Service, Platform and Content are provided for information purposes only without us assuming any duty of care to you.  You accept that any Content is general information and not in the nature of advice. It is not intended to be used as a substitute for obtaining personalised professional advice from a qualified practitioner or other expert.

7.4           To the extent permitted at law, we disclaim any warranty as to the accuracy, completeness, currency or adequacy of the Service, the Platform and Content, and your use of any such information or materials is at your own risk.

8.            Intellectual Property Rights

8.1           We acknowledge that we make no claim to ownership of Your Data, which, as between you and us, will be owned by you. To the extent necessary for us to provide the Service to you, you grant us a non-exclusive licence to use such data.

8.2           You acknowledge that we own and will retain all Intellectual Property Rights associated with Our IP.  You are licensed to use such intellectual property rights to the extent necessary only to use the Service and any Content during the Subscription Period and subject to the limitations of this Agreement.

8.3           You acknowledge that we own the trade mark “Prophet” including any logo version thereof. These trade marks may not be used by you without our prior written consent.  

8.4           Except as expressly stated in this Agreement, nothing contained herein shall be construed as conferring on you any licence or right, by implication, estoppel or otherwise, under copyright or other Intellectual Property Rights.

8.5           You shall not disclose or make available Our Confidential Information to any third party. You must take all precautions and steps reasonably necessary to prevent unauthorised disclosure and unauthorised use of Our Confidential Information.

9.            Information Provided for Usage of the Platform

9.1           You are responsible for using our in-built data source library to connect your organisation, media and Customer Data to the Platform.  You will be able to invite Authorised Users to connect to a data source, as opposed to access to the entire Platform. [A5] [DK6] 

9.2           You acknowledge that failure to upload minimum data requirements as stipulated by us in the process of onboarding you, may result in delays in the provision of access to and utilisation of the Service.

9.3           You must not provide false, inaccurate or misleading information and data when using the Service (including in Your Data).

9.4           You must ensure that you comply with any obligations you may have under the Privacy Act (1988) (Cth) pertaining to any personal information you may disclose or obtain in the course of your use of the Service.

9.5           We may monitor usage of the Service and in the event of detecting any infringement of the rights hereby conferred or any other breach of this Agreement may notify you. You consent to the use of any data evidencing any such infringement.

9.6           You acknowledge that data, including Your Data (other than any personal information or information that identifies you as a customer) that you provide in the course of using the Service may be incorporated into the Platform for the purposes of generation of Content that may be used in future, including by other users of the Service.

10.        Training and education

10.1        We will provide either online or in-person [A7] [DK8] onboarding and capability training at or close to  the commencement of your Subscription, for Authorised Users who have been nominated as such at the time of the commencement.

10.2        We will make available an on-line help library that will be updated and amended from time to time as the Service changes.

11.        Additional Services

11.1        If and to the extent that you request and we agree to provide additional services not covered by this Agreement, these will be subject to our agreement and your payment of any corresponding fees and charges as notified to you from time to time.

12.        Errors, Corrections and Maintenance

12.1        We take reasonable steps to ensure that the Platform functions as intended with 99.9 per cent up time.  However you acknowledge that your access to the Platform may be disrupted as a result of a malfunction, updating, planned maintenance or repair, or for any reason within or outside our control.

12.2        To the extent permissible at law, we shall not be liable for any loss or damage caused or suffered as a result of the use of the Service, the Portal, Content, or of any partial or total breakdown of, or the inability to use, the Service. 

12.3        We do not represent or warrant that the Platform will be constantly available, error-free, free of viruses or other harmful components, or that defects will be corrected or that it will always be accessible. Except as set out herein, we do not warrant or represent that the information available on or through the Platform will be correct, accurate, timely, or otherwise reliable. We may make improvements and/or changes to its features, functionality, or content at any time and may schedule downtime for such purposes.

13.        Updates and changes

13.1        You accept that the Service may evolve and change over time. We reserve the right to modify, adapt, suspend or discontinue, whether temporarily or permanently any part of the Service and to update and amend the Service from time to time to improve or refine its functionality. To the extent permissible at law, we will not be liable to you or to any third party for any modification, adaptation, suspension or (subject to reimbursement of any Subscription Fees paid in advance prior to such discontinuance) any discontinuance of the Service.

14.        Third Party Content

14.1        Third party content may appear on the Platform or may be accessible via links. We shall not be responsible for and assume no liability for any infringement, mistakes, misstatements of law, slander, defamation, libel, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations, or any other form of content contained in any third-party content appearing on or linked to the Platform. You understand that the information and opinions in the third-party content is neither endorsed by nor does it reflect our beliefs.

15.        Security

15.1        We will take all reasonable steps to ensure the security of the Platform and Service.

15.2        You must take your own precautions to ensure that the process which you employ for accessing the Service does not expose your computer or other systems to the risk of viruses, malicious computer code or other forms of interference which may damage yours or others’ computer or other systems.

15.3        You shall be liable for all action taken by any person to whom you have provided access to your Account (whether or not they are an Authorised User) and agree to notify us immediately of any unauthorised use of your Account or other breach of security or privacy.

15.4        Please see our privacy policy for more information about how we treat personal information.

16.        Disclaimer

16.1        Except to the extent otherwise provided herein or required at law including under the Australian Consumer Law, the Service is provided on an “as is, as available” basis. We expressly disclaim all warranties unless required by law. To the maximum extent permitted by law, but without limiting any obligations that we may have under the Australian Consumer Law, we disclaim all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to:

(a)            any errors in or omissions from the Platform and any content, including but not limited to typographical errors and technical inaccuracies;

(b)            any third party web sites or content therein directly or indirectly accessed through links from the Platform, including but not limited to any errors in or omissions contained therein;

(c)            the unavailability of the Platform or any portion thereof; 

(d)            your use of the Platform or Services; or

(e)            your use of any equipment or third-party software in connection with the Platform.

17.        Limitation of liability

17.1        To the extent permitted by law, where required under the Australian Consumer Law or as otherwise set out herein, neither of us shall be liable to each other for any special, direct, indirect, incidental, or consequential damages of any kind whatsoever, including without limitation, legal fees, in any way due to, resulting from, or arising in connection with the use of or inability to use the Service or the content of the Platform. To the extent the above limitation of liability is prohibited under applicable law, and to the extent such liability may be limited thereunder, our obligation to you for damages shall not exceed the amount of any Subscription Fees paid.

17.2        To the extent permitted by law, in the event of a breach by us of any condition, warranty or obligation under this Agreement, our liability for breach shall be limited to (as determined by us in our discretion, acting reasonably):

(a)            the resupply of the Services;

(b)            payment of the cost of acquiring equivalent Services;

(c)            reimbursement of charges deducted in error; and/or

(d)            refund of Subscription Fees.

18.        Indemnity

18.1        To the extent permissible at law, you agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Services from and against any and all losses, expenses, costs and damages, including reasonable lawyer fees, resulting from any breach by you of this Agreement and any reliance on the Service and Content.

18.2        Subject to the limitations of the Service referred to herein, we agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Services from and against any and all losses, expenses, costs and damages, including reasonable lawyer fees, resulting from any breach by us of this Agreement.

19.        Termination for Cause

19.1        Either party may terminate this Agreement with immediate effect by giving the other party notice in writing if any of the following occur:

(a)            The other party is in breach of this Agreement, and such breach is not capable of remedy, or if capable of remedy, has not been remedied within 7 days of the non-defaulting party notifying the other to do so;

(b)            The other party ceases or threatens to cease conducting in its business in the normal manner, or one of its directors dies or becomes incapacitated other than temporarily; or

(c)            The other party becomes unable to pay their debts as and when they fall due, or becomes or threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.

19.2        In addition to clause 19.1, we may terminate this Agreement with immediate effect if any of the following occur:

(a)            You do or cause to be done any wilful or negligent act or omission which harms or is likely to harm our interests or reputation;

(b)            Your business is acquired by any other company or other person or entity; or

(c)            You, being a company, undergo a change in your majority shareholding or majority equity holdings of  or a change in control (where the definition of control is the same as s. 50AA of the Corporations Act);

20.        Upon termination or expiry

20.1        Upon termination or expiry of your Subscription, we will (in addition to any other right or remedy available to either of us) within a reasonable time delete all Your Data other than information about your Account that we may need to keep a record of for administrative or compliance purposes[A9] [DK10] .

21.        Promoting you as our customer

21.1        You agree that we may use your company’s name and logos for the purpose of promoting (at our website, in promotional and marketing materials, for case studies, as well as collaborative studies, in journals and analyses) the fact that you are or have been a customer of the Service and (without disclosing any confidential or personal information) in general terms the outcomes of your use of the Service.

22.        Subcontractors

22.1        You agree that we may use third party providers to provide various goods and services, including the necessary hardware, software, networking, storage and related technology required to run the Service.

23.        Unlawful Activity

23.1        We reserve the right to investigate complaints or reported breaches of this Agreement and take any action we deem reasonably appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.

24.        Validity

24.1        Nothing in this Agreement shall be construed as excluding or overriding any mandatory terms imposed under any legislation applicable to this Agreement or its performance.

24.2        If any provision of this Agreement shall be deemed unlawful, void or for any other reason unenforceable, then the provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

24.3        The Agreement may only be varied or amended by written agreement by both us and you.

25.        GST

25.1        In this clause, words and expressions which are not defined in this Agreement, but which have a defined meaning in GST Law (i.e., in legislation relating to Goods and Services Tax in Australia) shall have the same meaning as in the GST Law. Unless otherwise expressly stated, all prices or other amounts payable or considerable to be provided under this Agreement are exclusive of GST.

25.2        Where GST is payable by a supplier (within the meaning of the GST Law), or by the representative member for a GST group of which the supplier is a member, on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply, in addition to and at the same time that the consideration for the supply is to be provided under this Agreement.

25.3        The supplier shall deliver a tax invoice, or an adjustment note to the recipient before the supplier is entitled to payment of an amount of GST.

26.        Jurisdiction

26.1        This Agreement shall be governed by and construed in accordance with the laws operating in the State of Victoria, Australia, without giving effect to any principles of conflicts of law. The parties agree that any action at law arising out of or relating to this Agreement shall be filed only in the state or federal courts located in Victoria, Australia and the parties consent and submit to the non-exclusive jurisdiction of these courts for the purpose of litigating any such action.

27.        Entire agreement / Updates to agreement

27.1        This Agreement shall constitute the entire agreement between us and you in respect of the Service and shall override all previous understandings or representations.

27.2        This Agreement may be amended or updated from time to time, by posting updated Terms of Use on our website or otherwise notifying you. Amendments will not have a retrospective effect. If you do not agree to any amendments you may terminate your Subscription and must cease using the Service.

Agreement version February 2024.

 [A1]This will need an amendment to be in reference to the chosen tier (Analyser, Intelligence, Enterprise, Agency) which have different user triggers etc.   We might just need to amend these access numbers depending on what tier they chose.    [DK2]How about we say something along the lines of “You may allow up to the permitted number of users that corresponds with the subscription tier you have selected.”  [A3]This should only be when selected.   All of these will be invoiced either monthly, quarterly, bi-annually or annually.  [DK4]Proposed amendment - we preface with “Where you have elected to pay using direct debit”  [A5]These types of users won’t count towards their user-caps; they will only have access to the Data Source capability to connect platforms.  [DK6]Proposed amendment (“without limitation as to the number of users”)  [A7]Made changes to include OR rather than just one or the other.  [DK8]Noted  [A9]We will not delete this data for the purpose of feeling the model. If it’s been ingested by our Neural Networks, and therefore used to improve the model, we will cease to intake data once they’ve stopped their subscription.    [DK10]Please confirm that this data does not include any personal information?

This SUBSCRIPTION Agreement is between PROPHET TECHNOLOGIES PTY LTD (ACN 654 537 756) (“we”, “us”) AND the company or other person/entity named in the Subscription Order as the subscriber (“you”).

1.            Definitions

In this Agreement the following terms have the following meanings:

Authorised User” has the meaning set out in clause 3.2.

Content” means any content appearing at, or obtained from use of, the Service including all data generated through such use, and any reports of analyses generated as part of the Service but excludes Your Data.

Intellectual Property Rights” means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trade marks (whether registered or unregistered), rights in respect of inventions, patents, patent applications, designs (whether registered or unregistered), confidential information, know-how and domain names.

Our Confidential Information” means confidential information pertaining to us and our related entities, including without limitation, all information and content provided as part of the Service, but excludes any information which:

(a)        is in, or enters, the public domain, otherwise than as a result of a breach by you of this Agreement or other obligation of confidence; or

(b)        was developed independently by you, without the use of the whole or any part of our confidential information or Our IP.

Our IP” means;

(a)            Our Confidential Information;

(b)            all Intellectual Property Rights associated with the Platform, the Service and the Content (excluding Your Data); and

(c)            without limiting (b), includes all know-how in developing and providing the Service, including but not limited to system architecture, coding, design, content, templates, forms, metrics, interface, automated responses, reports, applications and system enhancements associated with the Platform, the Service and Content.

"Platform” means our analytics platform accessible at www.goprophet.io as it is amended and updated from time to time.

Service” means our operation of and provision of access to the Platform. Unless the context requires otherwise, references to the Service include references to the Platform.

Subscription” means the provision to you of the Service, further details of which are provided in the Subscription Order, and any amendments we and you may agree in writing from time to time.

Subscription Fees” means the fees for the Subscription as set out in the Subscription Order.

Subscription Order” means an order form (including an electronic order form or similar) setting out the details of the Subscription and unless the context requires otherwise, means your completed order form once we have accepted it.

Subscription Period” means the period commencing on the commencement date specified in the Subscription Order and ending on the end date specified in the Subscription Order,  subject to any amendment or extension we agree to, including but not limited to the Additional Subscription Period (as defined in clause 5.1), or as may be otherwise agreed between us in writing.

Your Data” means data and content that you provide in and for the purpose of using the Service (not being data that constitutes Content).

2.            Account creation

2.1           You are required to create an account to use the Service (“Account”). In doing so, you may be required to provide information including your contact details, email address, details of your preferred method of payment, and any further information that may be requested to protect the security of your Account.

2.2           You must ensure that any information you provide to us in connection with establishing or maintaining your Account is and will remain true, accurate and current.

2.3           You warrant that where you enter into this Agreement on behalf of a company or other organisation, you have authority to do so and are entitled to bind that company or other organisation to its terms.

3.            Subscription Access

3.1           Subject to and in consideration of your payment of the Subscription Fees, we grant you a non-exclusive, non-transferrable, non-sublicensable, limited right to access and use the Service for the Subscription Period in accordance with this Agreement.

3.2           You may allow up to 25 users, being persons within your organisation, to use the Platform (each an “Authorised User”). You are responsible for all activity of Authorised Users.  Where this Agreement imposes an obligation on you, unless the context requires otherwise, this obligation also applies to your Authorised Users. You agree that we shall be entitled to consider any person who registers as your Authorised User as being authorised to do so by you. [A1] [DK2] 

3.3           You must not permit:

(a)            anyone other than the Authorised User to use the Service, Platform or Content, including by allowing any other person to use the Account details or password; or

(b)            any other access through a single name being made available to multiple users on a network or otherwise.

You are responsible for preventing such unauthorised use. If you believe there has been unauthorised use, you must notify us immediately in writing.

3.4           You agree that your use of the Service and all Content will be for your business’ internal purposes and not for any form of resale, commercialisation or broader publication of any aspect.

4.            Payment

4.1           You must pay us the Subscription Fees for the amount(s) and payment intervals specified in your Subscription Order. We will give you a Tax Invoice in respect each such interval (whether it be on a monthly, annual or other basis, as set out in your Subscription Order).

4.2           Subscription Fees must be paid within 30 days from the date of invoice.

4.3           Payment must be effected in the manner described on the Platform or as otherwise agreed in writing between us.

4.4           All prices are in Australian Dollars unless otherwise notified.

5.            Renewal of Subscription Period

5.1           Unless you advise us otherwise in writing in accordance with this clause 5, your Subscription Period will automatically be extended following the expiry of the initial Subscription Period, for further periods of equivalent duration (“Additional Subscription Period”), and again at the end of each Additional Subscription Period.

5.2           Where your Subscription Period (including any Additional Subscription Period) is 12 months, then at (a) three months; and (b) again at one month; prior to the end of the relevant Subscription Period, we will notify you that your Subscription is about to come to an end on the date specified in the notice, and give you the opportunity not to renew the Subscription.

5.3           Unless you notify us that you do not wish to renew the Subscription prior to the commencement of each Additional Subscription Period, you will be treated as having agreed to continuing your Subscription for the next Additional Subscription Period.

5.4           Where your Subscription Period (as specified in the Subscription Order) is on a monthly basis, you must give us one month’s clear notice if you decide not to proceed with an Additional Subscription Period of one month, in order to end the Subscription and will be liable for an additional month if less than this required notice is provided. 

5.5           Where the Subscription Term has been extended by way of an Additional Subscription Period, the Subscription Fees payable for such Additional Subscription Period must be paid by you on or before the commencement date of that Additional Subscription Period. 

5.6           You authorise us to use the direct debit facility details of which you have provided to us for this purpose for the purpose of paying the Additional Subscription Period.[A3] [DK4] 

6.            Limitations on Use

6.1           Except as expressly permitted under this Agreement, you must not;

(a)            copy, reproduce, decompile, disassemble, reverse engineer, rent, lease, loan, sell or attempt to license the whole or any substantial part of the Service, Platform or Content;

(b)            use any software or tools or discovery technology or network monitoring to attempt to determine the Platform architecture, its algorithms, or extract information about usage, individual identities or users; nor

(c)            use any robot, spider, other automatic software or device, or manual process to monitor or copy any substantial part of the Platform without our prior written permission. 

6.2           Without limiting any other obligation under this Agreement, you must not without our prior written consent, share or permit any Content for the purposes of or in a manner that is able to be utilised or made accessible for usage in any Artificial Intelligence application or AI machine learning device.

6.3           You must not use the Service or any Content for any illegal, immoral, indecent or in appropriate purpose, including, without limitation, to defame or mislead any person, nor to transmit unsolicited emails/ spam.

7.            Reliance on information/advice

7.1           All Content and advice appearing at or accessible from the Service is provided in good faith.  While we have no reason to believe that any particular Content is or will be inaccurate, to the extent permissible we do not warrant the accuracy, adequacy or completeness of such Content.

7.2           We use reasonable endeavours to:

(a)            make Content and information obtained from the Service reasonably accurate; and

(b)            where an opinion is expressed by us in Content, to give that opinion with reasonable care and skill.

7.3           Subject to the above, you acknowledge that using the Service involves the generation and provision of data and analyses based on statistical and mathematical reasoning but relies also on matters of speculation, prediction and subjectivity. Accordingly, the outcomes of use of the Service may not be accurate or reliable.  The Service, Platform and Content are provided for information purposes only without us assuming any duty of care to you.  You accept that any Content is general information and not in the nature of advice. It is not intended to be used as a substitute for obtaining personalised professional advice from a qualified practitioner or other expert.

7.4           To the extent permitted at law, we disclaim any warranty as to the accuracy, completeness, currency or adequacy of the Service, the Platform and Content, and your use of any such information or materials is at your own risk.

8.            Intellectual Property Rights

8.1           We acknowledge that we make no claim to ownership of Your Data, which, as between you and us, will be owned by you. To the extent necessary for us to provide the Service to you, you grant us a non-exclusive licence to use such data.

8.2           You acknowledge that we own and will retain all Intellectual Property Rights associated with Our IP.  You are licensed to use such intellectual property rights to the extent necessary only to use the Service and any Content during the Subscription Period and subject to the limitations of this Agreement.

8.3           You acknowledge that we own the trade mark “Prophet” including any logo version thereof. These trade marks may not be used by you without our prior written consent.  

8.4           Except as expressly stated in this Agreement, nothing contained herein shall be construed as conferring on you any licence or right, by implication, estoppel or otherwise, under copyright or other Intellectual Property Rights.

8.5           You shall not disclose or make available Our Confidential Information to any third party. You must take all precautions and steps reasonably necessary to prevent unauthorised disclosure and unauthorised use of Our Confidential Information.

9.            Information Provided for Usage of the Platform

9.1           You are responsible for using our in-built data source library to connect your organisation, media and Customer Data to the Platform.  You will be able to invite Authorised Users to connect to a data source, as opposed to access to the entire Platform. [A5] [DK6] 

9.2           You acknowledge that failure to upload minimum data requirements as stipulated by us in the process of onboarding you, may result in delays in the provision of access to and utilisation of the Service.

9.3           You must not provide false, inaccurate or misleading information and data when using the Service (including in Your Data).

9.4           You must ensure that you comply with any obligations you may have under the Privacy Act (1988) (Cth) pertaining to any personal information you may disclose or obtain in the course of your use of the Service.

9.5           We may monitor usage of the Service and in the event of detecting any infringement of the rights hereby conferred or any other breach of this Agreement may notify you. You consent to the use of any data evidencing any such infringement.

9.6           You acknowledge that data, including Your Data (other than any personal information or information that identifies you as a customer) that you provide in the course of using the Service may be incorporated into the Platform for the purposes of generation of Content that may be used in future, including by other users of the Service.

10.        Training and education

10.1        We will provide either online or in-person [A7] [DK8] onboarding and capability training at or close to  the commencement of your Subscription, for Authorised Users who have been nominated as such at the time of the commencement.

10.2        We will make available an on-line help library that will be updated and amended from time to time as the Service changes.

11.        Additional Services

11.1        If and to the extent that you request and we agree to provide additional services not covered by this Agreement, these will be subject to our agreement and your payment of any corresponding fees and charges as notified to you from time to time.

12.        Errors, Corrections and Maintenance

12.1        We take reasonable steps to ensure that the Platform functions as intended with 99.9 per cent up time.  However you acknowledge that your access to the Platform may be disrupted as a result of a malfunction, updating, planned maintenance or repair, or for any reason within or outside our control.

12.2        To the extent permissible at law, we shall not be liable for any loss or damage caused or suffered as a result of the use of the Service, the Portal, Content, or of any partial or total breakdown of, or the inability to use, the Service. 

12.3        We do not represent or warrant that the Platform will be constantly available, error-free, free of viruses or other harmful components, or that defects will be corrected or that it will always be accessible. Except as set out herein, we do not warrant or represent that the information available on or through the Platform will be correct, accurate, timely, or otherwise reliable. We may make improvements and/or changes to its features, functionality, or content at any time and may schedule downtime for such purposes.

13.        Updates and changes

13.1        You accept that the Service may evolve and change over time. We reserve the right to modify, adapt, suspend or discontinue, whether temporarily or permanently any part of the Service and to update and amend the Service from time to time to improve or refine its functionality. To the extent permissible at law, we will not be liable to you or to any third party for any modification, adaptation, suspension or (subject to reimbursement of any Subscription Fees paid in advance prior to such discontinuance) any discontinuance of the Service.

14.        Third Party Content

14.1        Third party content may appear on the Platform or may be accessible via links. We shall not be responsible for and assume no liability for any infringement, mistakes, misstatements of law, slander, defamation, libel, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations, or any other form of content contained in any third-party content appearing on or linked to the Platform. You understand that the information and opinions in the third-party content is neither endorsed by nor does it reflect our beliefs.

15.        Security

15.1        We will take all reasonable steps to ensure the security of the Platform and Service.

15.2        You must take your own precautions to ensure that the process which you employ for accessing the Service does not expose your computer or other systems to the risk of viruses, malicious computer code or other forms of interference which may damage yours or others’ computer or other systems.

15.3        You shall be liable for all action taken by any person to whom you have provided access to your Account (whether or not they are an Authorised User) and agree to notify us immediately of any unauthorised use of your Account or other breach of security or privacy.

15.4        Please see our privacy policy for more information about how we treat personal information.

16.        Disclaimer

16.1        Except to the extent otherwise provided herein or required at law including under the Australian Consumer Law, the Service is provided on an “as is, as available” basis. We expressly disclaim all warranties unless required by law. To the maximum extent permitted by law, but without limiting any obligations that we may have under the Australian Consumer Law, we disclaim all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to:

(a)            any errors in or omissions from the Platform and any content, including but not limited to typographical errors and technical inaccuracies;

(b)            any third party web sites or content therein directly or indirectly accessed through links from the Platform, including but not limited to any errors in or omissions contained therein;

(c)            the unavailability of the Platform or any portion thereof; 

(d)            your use of the Platform or Services; or

(e)            your use of any equipment or third-party software in connection with the Platform.

17.        Limitation of liability

17.1        To the extent permitted by law, where required under the Australian Consumer Law or as otherwise set out herein, neither of us shall be liable to each other for any special, direct, indirect, incidental, or consequential damages of any kind whatsoever, including without limitation, legal fees, in any way due to, resulting from, or arising in connection with the use of or inability to use the Service or the content of the Platform. To the extent the above limitation of liability is prohibited under applicable law, and to the extent such liability may be limited thereunder, our obligation to you for damages shall not exceed the amount of any Subscription Fees paid.

17.2        To the extent permitted by law, in the event of a breach by us of any condition, warranty or obligation under this Agreement, our liability for breach shall be limited to (as determined by us in our discretion, acting reasonably):

(a)            the resupply of the Services;

(b)            payment of the cost of acquiring equivalent Services;

(c)            reimbursement of charges deducted in error; and/or

(d)            refund of Subscription Fees.

18.        Indemnity

18.1        To the extent permissible at law, you agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Services from and against any and all losses, expenses, costs and damages, including reasonable lawyer fees, resulting from any breach by you of this Agreement and any reliance on the Service and Content.

18.2        Subject to the limitations of the Service referred to herein, we agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Services from and against any and all losses, expenses, costs and damages, including reasonable lawyer fees, resulting from any breach by us of this Agreement.

19.        Termination for Cause

19.1        Either party may terminate this Agreement with immediate effect by giving the other party notice in writing if any of the following occur:

(a)            The other party is in breach of this Agreement, and such breach is not capable of remedy, or if capable of remedy, has not been remedied within 7 days of the non-defaulting party notifying the other to do so;

(b)            The other party ceases or threatens to cease conducting in its business in the normal manner, or one of its directors dies or becomes incapacitated other than temporarily; or

(c)            The other party becomes unable to pay their debts as and when they fall due, or becomes or threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.

19.2        In addition to clause 19.1, we may terminate this Agreement with immediate effect if any of the following occur:

(a)            You do or cause to be done any wilful or negligent act or omission which harms or is likely to harm our interests or reputation;

(b)            Your business is acquired by any other company or other person or entity; or

(c)            You, being a company, undergo a change in your majority shareholding or majority equity holdings of  or a change in control (where the definition of control is the same as s. 50AA of the Corporations Act);

20.        Upon termination or expiry

20.1        Upon termination or expiry of your Subscription, we will (in addition to any other right or remedy available to either of us) within a reasonable time delete all Your Data other than information about your Account that we may need to keep a record of for administrative or compliance purposes[A9] [DK10] .

21.        Promoting you as our customer

21.1        You agree that we may use your company’s name and logos for the purpose of promoting (at our website, in promotional and marketing materials, for case studies, as well as collaborative studies, in journals and analyses) the fact that you are or have been a customer of the Service and (without disclosing any confidential or personal information) in general terms the outcomes of your use of the Service.

22.        Subcontractors

22.1        You agree that we may use third party providers to provide various goods and services, including the necessary hardware, software, networking, storage and related technology required to run the Service.

23.        Unlawful Activity

23.1        We reserve the right to investigate complaints or reported breaches of this Agreement and take any action we deem reasonably appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.

24.        Validity

24.1        Nothing in this Agreement shall be construed as excluding or overriding any mandatory terms imposed under any legislation applicable to this Agreement or its performance.

24.2        If any provision of this Agreement shall be deemed unlawful, void or for any other reason unenforceable, then the provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

24.3        The Agreement may only be varied or amended by written agreement by both us and you.

25.        GST

25.1        In this clause, words and expressions which are not defined in this Agreement, but which have a defined meaning in GST Law (i.e., in legislation relating to Goods and Services Tax in Australia) shall have the same meaning as in the GST Law. Unless otherwise expressly stated, all prices or other amounts payable or considerable to be provided under this Agreement are exclusive of GST.

25.2        Where GST is payable by a supplier (within the meaning of the GST Law), or by the representative member for a GST group of which the supplier is a member, on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply, in addition to and at the same time that the consideration for the supply is to be provided under this Agreement.

25.3        The supplier shall deliver a tax invoice, or an adjustment note to the recipient before the supplier is entitled to payment of an amount of GST.

26.        Jurisdiction

26.1        This Agreement shall be governed by and construed in accordance with the laws operating in the State of Victoria, Australia, without giving effect to any principles of conflicts of law. The parties agree that any action at law arising out of or relating to this Agreement shall be filed only in the state or federal courts located in Victoria, Australia and the parties consent and submit to the non-exclusive jurisdiction of these courts for the purpose of litigating any such action.

27.        Entire agreement / Updates to agreement

27.1        This Agreement shall constitute the entire agreement between us and you in respect of the Service and shall override all previous understandings or representations.

27.2        This Agreement may be amended or updated from time to time, by posting updated Terms of Use on our website or otherwise notifying you. Amendments will not have a retrospective effect. If you do not agree to any amendments you may terminate your Subscription and must cease using the Service.

Agreement version February 2024.

 [A1]This will need an amendment to be in reference to the chosen tier (Analyser, Intelligence, Enterprise, Agency) which have different user triggers etc.   We might just need to amend these access numbers depending on what tier they chose.    [DK2]How about we say something along the lines of “You may allow up to the permitted number of users that corresponds with the subscription tier you have selected.”  [A3]This should only be when selected.   All of these will be invoiced either monthly, quarterly, bi-annually or annually.  [DK4]Proposed amendment - we preface with “Where you have elected to pay using direct debit”  [A5]These types of users won’t count towards their user-caps; they will only have access to the Data Source capability to connect platforms.  [DK6]Proposed amendment (“without limitation as to the number of users”)  [A7]Made changes to include OR rather than just one or the other.  [DK8]Noted  [A9]We will not delete this data for the purpose of feeling the model. If it’s been ingested by our Neural Networks, and therefore used to improve the model, we will cease to intake data once they’ve stopped their subscription.    [DK10]Please confirm that this data does not include any personal information?