Terms of Service for the Biznostics Platform
By clicking ‘accept’ you agree to be bound by this Agreement.
1 Duration of Agreement
(a) This Agreement commences from the date that the Customer subscribes to the Biznostics Platform and continues, subject to clause 1(b), for successive Subscription Periods, unless terminated in accordance with its terms.
(b) If, at any time at least 24 hours before the end of the current Subscription Period, the Customer notifies Biznostics in writing that the Customer does not want the Agreement to renew for a further Subscription Period, the Agreement will expire at the end of the current Subscription Period.
2 Provision of services
While this Agreement continues, Biznostics will provide the Customer with:
(a) access to the Biznostics Platform on the terms of this Agreement; and
(b) the Support Services.
2.2 Conditions of access to the Biznostics Platform
(a) The Customer must use the Biznostics Platform in accordance with:
(2) any applicable Laws.
(b) The Customer must:
(1) not allow any person other than an Authorised User to access or use the Biznostics Platform;
(2) ensure that each Authorised User complies with the requirements of this clause 2 as if a reference to the Customer was a reference to the Authorised User; and
(3) is liable for use of the Biznostics Platform by all Authorised Users.
2.3 Restrictions on use
The Customer must not, and must ensure that each Authorised User does not:
(a) modify or make derivative works based upon any part of the Biznostics Platform;
(b) copy any online service provided by Biznostics or any part, feature, function or user interface thereof;
(c) create Internet “links” to the Biznostics Platform or “frame” or “mirror” any content in the Biznostics Platform on any other server or wireless or Internet-based device;
(d) access the Biznostics Platform in order to build a competitive product or service;
(e) reverse engineer any part of the Biznostics Platform in order to:
(1) build a competitive product or service;
(2) build a product using similar ideas, features, functions or graphics of the Biznostics Platform; or
(3) copy any ideas, features, functions or graphics of the Biznostics Platform;
(f) send spam or otherwise duplicative or unsolicited messages;
(g) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children;
(h) transmit or store material containing any Disabling Code;
(i) interfere with or disrupt the integrity or performance of the Biznostics Platform or its related systems, networks or the data contained therein;
(j) attempt to gain unauthorised access to any service provided by Biznostics, any content provided by Biznostics, any of the Hosting Provider services, or any of Biznostics’ or the Hosting Provider’s systems or networks; or
(k) insert or activate, or permit a third party to insert or activate any Disabling Code into the Customer’s systems used for accessing the Biznostics Platform, or into Biznostics’ systems, at any time, including upon termination of this Agreement.
2.4 Operating environment
(a) The Customer is solely responsible for supplying and maintaining the software, hardware, operating system, network connections and other operational requirements required in order to access the Biznostics Platform.
(b) The Customer acknowledges and agrees that its failure to comply with clause 2.4(a) may affect its ability to successfully use the Biznostics Platform.
2.5 Limitations of the Biznostics Platform
The Customer acknowledges and agrees that:
(a) the Output is based on the use of, and data input into, the Biznostics Platform by the Customer and its Authorised Users as well as third party information, and, subject to clause 10.1, Biznostics makes no warranties or representations as to the accuracy, completeness or suitability for a particular purpose of the Output;
(b) the Output is designed to be used only by a professional in conjunction with that professional’s judgement and other information relevant to the Customer’s business, and should not be used or relied upon on its own for providing advice or making any operational or business decisions;
(c) the Output provided by the Biznostics Platform may be inaccurate, incorrect or incomplete;
(d) the Customer will not rely on the Output in any situation in which there is a threat or risk of harm to a person’s health or life; and
(e) the Customer will not use the Output as the basis for making any decisions which may materially affect the Customer’s business or its ongoing operation.
2.6 Standard of services
(a) Biznostics will use best endeavours to provide access to the Biznostics Platform, but Biznostics does not warrant that such access will be uninterrupted or error free. Despite anything else in this Agreement, the Customer acknowledges and accepts that the Biznostics Platform may not be available in all circumstances.
(b) All services that the Customer requires in connection with its network, systems or infrastructure, other than the Biznostics Platform as expressly described in this Agreement, are not within the scope of the Biznostics Platform.
2.7 Changes to the Services
From time to time, Biznostics may make changes to the Biznostics Platform.
3 Support Services
3.1 Provision of Support Services
(a) Biznostics will provide Support Services to assist the Customer with issues relating to:
(1) how to input the Customer’s data into the Biznostics Platform in order to make best use of the Biznostics Platform’s functionality;
(2) the Customer’s account on the Biznostics Platform, such as password resets and billing.
(b) Support Services will respond to incidents or requests for assistance in respect only of the provision of the Biznostics Platform under this Agreement.
(c) When reporting incidents or requesting assistance, the Customer must provide any reasonable information required by Biznostics to respond to the Customer’s report or request.
(d) Biznostics will not provide no on-site support as part of the Support Services.
(a) Support Services will be available for the Customer to request assistance via email during the hours of 8:30 am and 5 pm on every Business Day (Support Hours).
(b) All times refer to Australian Western Standard Time.
3.3 Response times
Biznostics will use its best endeavours to respond within 4 hours of the commencement of Support Hours.
(a) Support Services will be available for the Customer to request assistance via the methods specified within the Biznostics Platform at the following times:
4 Fees and payment
(a) The Customer must pay to Biznostics the Fees set out on the customer’s Subscription Page.
(b) Unless otherwise noted, Fees or other similar amounts referred to in this agreement, on the Biznostics Platform or on the Subscription Page include GST.
(c) Biznostics may, in its sole discretion, change the Fees by giving the Customer written notice at least 30 days prior to the end of the current Subscription Period, and the new Fees will take effect from the beginning of the next Subscription Period.
(d) The Customer must provide Biznostics with valid and current credit card information.
(e) The Customer authorises Biznostics to charge the provided credit card for the initial Subscription Period and any renewal Subscription Period
(f) Charges under this clause 4 will be made in advance, before the commencement of the Subscription Period to which it relates.
5 Customer’s obligations
The Customer must:
(a) comply promptly with Biznostics’ reasonable directions in relation to the provision of the Biznostics Platform; and
(b) comply with, and ensure all its Authorised Users comply with, all Laws concerning the Customer’s use of the Biznostics Platform.
5.2 Support Services
To the extent reasonably necessary for Biznostics to perform the Support Services, the Customer must provide all assistance requested by Biznostics Personnel in the diagnosis of any problem within the Customer’s computer systems or networks, and follow any reasonable direction of Biznostics in doing so.
6 Suspension or unavailability of Services
6.1 Suspension of Services
(a) Without limiting any of Biznostics’ rights or remedies under this Agreement or at law, Biznostics may limit or suspend the provision of the Biznostics Platform to the Customer by notice in writing with immediate effect if:
(1) Biznostics is affected by a Force Majeure Event;
(2) Biznostics is directed or required to do so by law;
(3) the Customer fails to pay an amount that is due and payable under clause 4;
(4) Biznostics reasonably believes that, in the course of using the Biznostics Platform, the Customer or any Authorised User has breached a person’s rights (including any Intellectual Property Rights) or any Law;
(5) Biznostics reasonably believes that the Customer has failed to comply with its obligations under clause 2; or
(6) an Insolvency Event occurs in relation to the Customer.
(b) Biznostics may limit, suspend or cancel an Authorised User’s access to the Biznostics Platform without notice to the Customer if:
(1) the Authorised Person fails to comply with clause 2; or
(2) Biznostics reasonably believes that, in the course of using the Biznostics Platform, the Authorised User has breached a person’s rights (including any Intellectual Property Rights) or any Law.
6.2 Unavailability of Services
(a) Any or all of the Biznostics Platform may be unavailable during periods of scheduled maintenance, which Biznostics will attempt to perform at off-peak times. If the scheduled maintenance period is expected to last more than 2 hours, Biznostics will notify the Customer, either by posting a notice regarding the scheduled maintenance to its mailing list or to the Biznostics Platform, or by any other means.
(b) Any or all of the Biznostics Platform may be unavailable during unscheduled maintenance periods. Once the unscheduled maintenance is completed and the Biznostics Platform is available again, Biznostics will notify the Customer regarding the maintenance and its conclusion, either by posting a notice to its mailing list or to the Biznostics Platform, or by any other means.
(c) The Customer acknowledges and accepts that the Internet is not consistently reliable, and any or all of the Biznostics Platform may be unavailable or operate slower than usual due to issues related to network coverage, internet connectivity, the Customer’s telecommunications infrastructure or the Internet generally.
7.1 Termination by Biznostics for cause
Biznostics may, in its absolute discretion, terminate this Agreement:
(a) immediately by notice to the Customer if the Customer breaches this Agreement and, in Biznostics’ reasonable opinion, the breach:
(1) cannot be remedied; or
(2) can be remedied, but the Customer does not remedy it within 10 Business Days after Biznostics gives the Customer notice of the breach;
(b) immediately by notice to the Customer if an Insolvency Event occurs in relation to the Customer; or
(c) on 30 days’ notice to the Customer if Biznostics stops offering the Biznostics Platform as part of its business.
7.2 Consequences of termination
(a) The termination of this Agreement does not affect any of Biznostics’ other rights or remedies.
(b) If this Agreement is terminated, each party may retain copies of the Confidential Information of the other party, for the sole purpose of, and only to the extent required to, comply with any applicable Laws relating to archiving or recordkeeping.
7.3 Customer Data
If the Customer’s access to the whole of the Biznostics Platform is to end for any reason, then the Customer must ensure that it takes a copy of any Customer Data accessible through its use of the Biznostics Platform prior to such access ending.
(a) The Customer represents and warrants that it will not use the Biznostics Platform, or permit the Biznostics Platform to be used, in any way that:
(1) breaches any applicable Law;
(2) infringes any person’s privacy; or
(3) breaches any person’s rights (including any Intellectual Property Rights).
(b) The Customer represents and warrants that it will not provide Output to any third person in a manner that is likely to, or likely to lead to:
(1) breach of any applicable Law;
(2) infringement of any person’s privacy; or
(3) breach of any person’s rights (including any Intellectual Property Rights).
The Customer must indemnify Biznostics, and Biznostics’ Personnel, against loss or damage suffered or incurred arising out of or in connection with, or any claim arising out of or in connection with:
(a) any wrongful act or omission by the Customer, the Customer’s Personnel or the Customer’s Authorised Users, including:
(1) breach of contract;
(2) tort (including negligence and breach of statutory duty);
(3) breach of any applicable Law;
(4) breach of privacy;
(5) breach of confidence; and
(6) infringement of any person’s Intellectual Property Rights or other rights; or
(b) any breach of any applicable Law by any person to whom the Customer, the Customer’s Personnel or an Authorised User discloses any Output.
The indemnities in this clauses 9 do not apply to any loss or damage to the extent that the loss or damage is caused by Biznostics’ breach of this Agreement or Biznostics’ negligence.
10.1 Consumer laws
(a) Biznostics acknowledges that, in some circumstances, the Customer may have rights under the Australian Consumer Law or other Laws which cannot be excluded, modified or restricted (Consumer Rights). The Consumer Rights may relate to conditions, warranties, undertakings and guarantees (including the Consumer Guarantees) which apply in relation to the Biznostics Platform.
(b) Nothing in this Agreement (including this clause 10) excludes, modifies or restricts the rights referred to under clause 10.1(a).
10.2 Limit of liability for Consumer laws
(a) Subject to clause 10.1, except as expressly set out in this Agreement, and to the fullest extent permitted at Law, Biznostics disclaims all express, implied and statutory warranties with regard to the Biznostics Platform including but not limited to, the implied warranties of quality, merchantability and fitness for a particular purpose.
(b) Subject to clause 10.1, Biznostics’ liability to the Customer in respect of any Consumer Rights is limited, at Biznostics’ option, to:
(1) resupplying the Biznostics Platform to the Customer;
(2) paying the cost of having the Biznostics Platform resupplied to the Customer; or
(3) refunding the Fees in respect the Customer’s access to the Biznostics Platform.
10.3 No liability
Notwithstanding any other clause of this Agreement, Biznostics has no liability to the Customer in respect of:
(a) any loss or damage whatsoever where the loss or damage is caused by:
(1) a breach of this Agreement by the Customer or the Customer’s Personnel;
(2) negligent or intentional acts or omissions by the Customer, its personnel or any third party; or
(3) a Force Majeure Event;
(b) any Consequential Loss, including where Biznostics had notice of the possibility of such Consequential Loss; or
(c) any loss or damage the Customer suffers or incurs due to factors outside Biznostics’ reasonable control.
10.4 Other limit of liability
In relation to Biznostics’ liability other than liability dealt with under clauses 10.2 and 10.3, the aggregate liability of Biznostics for loss or damage sustained by the Customer in connection with this Agreement (whether under statute, in contract or in tort, including for negligence, or otherwise) is limited to the amount of Fees received by Biznostics from the Customer under this Agreement in the 12 months immediately preceding the act or omission giving rise to the liability.
11 Intellectual Property Rights
(a) The Customer acknowledges and agrees that:
(1) all Intellectual Property Rights in or in connection with the Biznostics Platform; and
(2) subject to clause 12, all Intellectual Property Rights created in the course of or in connection with the provision of access to the Biznostics Platform,
vest, or will vest upon its creation, in Biznostics.
(b) The Customer acknowledges and agrees that nothing in this Agreement transfers to the Customer, or gives the Customer any right or interest in, any Intellectual Property Rights relating to the Biznostics Platform.
(c) The Customer must notify Biznostics of any actual, threatened or suspected infringement of any of Biznostics’ Intellectual Property Rights.
(d) Each party’s Background IP remains vested in that party and nothing in this Agreement transfers any interest in any Background IP to a party.
12 Customer Data
(a) The Customer owns all Intellectual Property Rights in the Customer Data.
(b) The Customer consents to Biznostics’ use of the Customer Data for the sole purpose of providing access to the Biznostics Platform to the Customer and for Biznostics’ internal reporting.
(c) Biznostics is not obliged to retain any Customer Data relating to the Biznostics Platform.
(d) The Customer acknowledges that Customer Data will be provided to the Hosting Provider and consents to the Hosting Provider’s use of the Customer Data for the purpose of hosting the Biznostics Platform.
(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party.
(b) The obligation of confidence in clause 13.1(a) extends to Confidential Information provided to or obtained by a party before entering into this Agreement.
The obligation of confidence in clause 13.1 does not apply to Confidential Information that is:
(a) required to be disclosed by applicable Law or the rules of any stock exchange upon which the recipient’s securities are listed;
(b) in the public domain otherwise than as a result of a breach of this Agreement or another obligation of confidence;
(c) independently developed by the recipient; or
(d) already known by the recipient independently of its involvement in this Agreement or interaction with the other party and free of any obligation of confidence.
13.3 Permitted disclosures
(a) Each party may disclose Confidential Information of the other party only on a ‘need to know’ and confidential basis:
(1) with the prior written consent of the other party;
(2) to its Personnel; or
(3) to its Related Companies,
for the exercise of rights or the performance of obligations under this Agreement.
(b) Each party who discloses Confidential Information of the other party pursuant to clause 13.3(a) must ensure that the information is kept confidential by the recipients.
13.4 Preventing disclosures
Each party must take all steps and do all things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.
13.5 Remedies for breach
(a) Each party acknowledges that the value of the other party’s Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this clause 13 is breached.
(b) Each party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this clause 13, a party may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 13.
14 Dispute Resolution
(a) If a party believes that a dispute has arisen in relation to this Agreement (Dispute), then that party must deliver a notice to the other party settling out the particulars of that Dispute (Notice of Dispute).
(b) If a party delivers a Notice of Dispute, then:
(1) representatives from each party must meet as soon as possible and use all reasonable endeavours to resolve the Dispute within 10 Business Days of the receipt of the Notice of Dispute (Initial Discussions); and
(2) if the Dispute is not resolved during the Initial Discussions, then it must be immediately escalated to the CEO (or equivalent representative) from each party, who must use all reasonable endeavours to resolve the Dispute within 10 Business Days of the end of the timeframe for the Initial Discussions.
(c) Neither party may commence legal proceedings in relation to a Dispute without complying with the requirements in clauses 14(a) and 14(b), unless the party is seeking urgent interlocutory relief.
(d) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement.
(a) Interpretation: In this Agreement, unless the context requires otherwise:
(1) headings are for convenience only and do not affect the interpretation of this Agreement;
(2) words importing the singular include the plural and vice versa;
(3) words importing a gender include any gender;
(4) a reference to any thing (including, but not limited to, any right) includes a part of that thing;
(5) a reference to a right includes a power, authority, discretion, benefit or remedy conferred on a party by this Agreement or any applicable law;
(6) a reference to a person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
(7) a reference to a clause, party or schedule is a reference to a clause of, and a party and schedule to, this Agreement and a reference to this Agreement includes an attachment and schedule;
(8) a reference to a statute, regulation includes all statutes or regulations, amending, consolidating or replacing it and a reference to a statute includes all regulations issued under that statute;
(9) a reference to a party to a document includes that party’s successors and permitted assigns;
(10) no rule of construction applies to the disadvantage of a party solely because that party was responsible for the preparation of this Agreement or any part of it; and
(11) a promise or agreement by two or more persons binds them jointly and severally.
(b) Notices: Any notice or other communication to or by a party to this Agreement must comply with the requirements of this clause 15(b), be sent by email, in English and addressed:
(1) in the case of a notice to the Customer, to the email address provided when signing up to the Biznostics Platform; and
(2) in the case of a notice to Biznostics, to firstname.lastname@example.org, with a subject line of Terms of Service Notice, or
if applicable, to the alternative email details notified by a party in writing, and:
(3) a notice is regarded as being given by the sender and received by the addressee upon receipt of an acknowledgement (in any form) from the recipient that the email was received or, if the recipient does not provide acknowledgement, one Business Day after the email is sent;
(4) if the delivery or receipt of any notice is on a day which is not a Business Day or is after 4.00pm (addressee’s time), it is regarded as received on the following Business Day; and
(5) a notice must not be sent by email if it is a notice in relation to the breach or termination of this Agreement.
(c) Governing law and jurisdiction: This Agreement is governed by the laws of Western Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia.
(e) Variation: A variation of any term of this Agreement must be in writing and executed by the parties.
(f) Assignment: Biznostics may assign, transfer, novate, mortgage, encumber, charge, grant a security over or otherwise dispose of its rights and obligations under or in connection with this Agreement without the Customer’s consent. The Customer must not do any of these things without Biznostics’ consent.
15.2 Survival of obligations
Clauses 2.2, 2.5, 4 (in relation to Fees that are unpaid at the date of termination or expiry) 7.2, 8 to 11, 14 and 15 and any other obligations which are expressed to or, by their nature, survive expiry or termination of this Agreement, will survive expiry or termination of this Agreement.
In this Agreement:
(b) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (WA);
(c) Authorised User means any person to whom the Customer has provided access to the Biznostics Platform;
(d) Background IP means, in relation to a party:
(1) all Intellectual Property Rights of the party that were in existence prior to the date of this Agreement; and
(2) all Intellectual Property Rights of the party that come into existence independently of this Agreement;
(e) Biznostics Platform means the online platform accessible at biznostics.com and includes the Support Services.
(f) Business Day means a day on which banks are open for business in Perth excluding a Saturday, Sunday or public holiday in that city;
(g) Confidential Information of a party means any information:
(1) regarding the business or affairs of that party or its Related Companies;
(2) regarding the Customers, employees or contractors of, or other persons doing business with, that party or its Related Companies;
(3) regarding the terms of this Agreement, or the commercial arrangements between the parties;
(4) which is by its nature confidential or which is designated as confidential by that party; or
(5) which the other party knows, or ought to know, is confidential;
(h) Consequential Loss means any loss of data, business, profits, opportunity, reputation or goodwill, or any other indirect or consequential loss, which is suffered by the Customer in connection with this Agreement;
(i) Consumer Guarantee means a consumer guarantee applicable to this contract under the Australian Consumer Law, including any express warranty (as defined in section 2(1) of the Australian Consumer Law);
(j) Customer Data means all data entered into the Biznostics Platform by the Customer;
(k) Disabling Code means any virus, bomb, Trojan horse or other malware or computer programming code, including source and object code, which may impair, deny or otherwise adversely affect the use of software;
(l) Force Majeure Event means:
(1) an act of God;
(2) war, revolution or any other unlawful act against public order or authority;
(3) an industrial dispute;
(4) a governmental restraint; or
(5) any other event which is not within the reasonable control of Biznostics;
(m) Fees means the fees for the Biznostics Platform which are set out on the Subscription Page;
(n) Government Agency means any government or any governmental or semi-governmental administrative body, department, authority, agency or entity;
(o) Hosting Provider means the person providing hosting infrastructure and services to Biznostics for use in providing the Biznostics Platform;
(p) Insolvency Event means, in relation to a party:
(1) an administrator, liquidator or provisional liquidator is appointed to the party or a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, any of those persons to the party;
(2) an application or order is made for the winding-up or dissolution of the party or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the party;
(3) a receiver, receiver and manager, official manager, trustee, administrator, other controller or similar officer is appointed over the assets or undertaking of the party or any steps are taken to appoint, or to pass a resolution to appoint, any of those persons to the party;
(4) the party suspends payment of its debts generally or is unable to pay its debts as and when they fall due or is presumed to be insolvent under applicable law, or enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(5) the party ceases to carry on business; or
(6) anything having a substantially similar effect to any of the events specified in 1 to 5 above happens to that party under the law of any jurisdiction;
(q) Intellectual Property Rights means any industrial and intellectual property rights throughout the world and for the duration of the rights including:
(1) any patents, copyright including future copyright, registered or unregistered trademarks or service marks, trade names, brand names, registered or unregistered designs, commercial names, circuit layouts, database rights;
(2) any inventions, discoveries, processes, methods, trade secrets, know how, computer software, confidential information and scientific, technical and product information;
(3) the right to apply for any industrial and intellectual property rights;
(4) any moral rights; and
(5) any other similar or analogous rights and any intellectual or industrial rights whether now existing or which come into existence in the future;
(r) Law means any:
(1) legislation, including regulations, determinations, by laws, declarations, ministerial directions and other subordinate legislation;
(2) common law;
(3) Governmental Agency requirement or authorisation (including conditions in respect of any authorisation);
(4) mandatory codes, standards and guidelines;
(5) writ, order, injunction, or judgment; or
(6) local government legislation, including regional plans, district plans, regulations, by laws, declarations, ministerial directions and other subordinate legislation.
(s) Output means any information, data, results, analyses and other output of the Biznostics Platform;
(t) Personnel means in relation to a party, that party’s employees, agents, consultants and subcontractors;
(u) Related Company means a related body corporate as that expression is defined in the Corporations Act 2001 (Cth);
(v) Subscription Page means the webpage setting out the particulars of the Customer’s use of the Biznostics Platform, including the Fees and the Commencement Date which can be accessed at https://dashboard.biznostics.com/users/login;
(w) Subscription Period means each calendar month after the date that the Customer subscribes to the Biznostics Platform;
(x) Support Services means support in respect of the Biznostics Platform, as specified in clause 3.1(a), provided by Biznostics in accordance with clause 3;