Software Terms and Conditions

Last update: 26 September 2019

1 Acceptance

1.1 Concerto Analytics Pty Ltd (ACN 617 236 218), its successors and assignees (we, us or our), own the online platform (Concerto) which is accessible at www.concertoanalytics.com and may be available through other addresses and channels (Platform).

1.2 These terms and conditions (Terms):

(a) set out the terms and conditions upon which we agree to grant you a right to use Platform and provide any other services as set out in these Terms (together the Services); and

(b) are binding on you from the date (Effective Date) on which you accept these Terms until the date on which these Terms are terminated in accordance with the Terms (Term).

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

1.4 By accepting these Terms, creating an Account and/or accessing and/or using the Services, you:

(a) warrant to us that you have reviewed these Terms (with your parent or legal guardian if you are under 18 years of age), and you understand them;

(b) warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Services and they have agreed to these Terms on your behalf;

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

(d) warrant to us that you have all hardware, software and services which are necessary to access and use the Services; and

(e) agree to use the Services in accordance with these Terms.

2 Your Account

2.1 You will create an account in order to access and use the Services, being (as applicable) the Platform we provide to you (Account). You must ensure that any information you provide to us, or we request from you as part of the creation process is complete and accurate and you are authorised to provide this information to us. It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account.

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

3 Licence

3.1 Subject to the payment of any applicable Fees, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Platform for the Term (Licence).

4 Prohibited Conduct

4.1 You must not access or use the Services except as permitted by the Licence and you must not permit any other person to use the Services in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property rights, including to; (1) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; (2) use the Services in any way that damages, interferes with or interrupts the supply of the Services; (3) introduce malicious programs into our hardware and software, networks and other IT systems, including viruses, worms, trojan horses and e-mail bombs; (4) carry out security breaches or disruptions of a network; (5) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services; (6) if applicable, send any form of harassment via any form of electronic messaging, whether through language, frequency, or size of messages or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or (7) circumvent user authentication or security of any of our networks, accounts or hosts or those of our other users.

5 Support Services

5.1 During the Term, subject to your payment of all Fees for your Plan, we will provide you with support services included in your Plan during our support hours, provided that (1) you notify us in accordance with any applicable systems and processes communicated to youand (2) where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).

6 Privacy

6.1 As part of the Account registration process, we may request registration-related information, including your name and email address. By providing this information, you consent to its collection and use by us to provide non-promotional communications regarding the Services. You may also have the opportunity to opt-in to receive promotional emails and materials from us. By choosing the opt-in option, you give your consent to receive such promotional materials from us until you exercise your option to unsubscribe from such communications. We will not, at any time, share your registration information with third parties unless:

(a) specifically authorised by you;

(b) as required by law or court order;

(c) to third-parties providing related services for us under appropriate obligations of confidentiality;

(d) in connection with a legal process; or

(e) to an acquirer of all or substantially all of the shares or assets of us or of the division to which this Agreement relates.

7 Communication

7.1 We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as email, with functional notifications.

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

8 Fees and payment

8.1 We will invoice you monthly in advance and you must pay us the Fee for your Plan, as set out in the invoice and any other amount payable to us under these Terms, without set off or delay, via any other payment method set out in the invoice.

8.2 Automatically renewing Plans: Your Plan will automatically renew at the end of the Plan period (and for the same Plan cycle) unless you terminate your Account and these Terms, (1) the Fee for your Plan will be payable in advance of the next billing cycle for your Plan; (2) if you upgrade or downgrade your Plan you must provide us at least 14 days’ notice prior to your next billing cycle, the invoice for your upgraded or downgraded Plan will show the Fee due for your new Plan in advance of your next Plan billing cycle; and (3) or if you provide us less than 14 days’ notice then the upgrade or dowgrade may be delayed until the subsequent Plan billing cycle.

8.3 You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, as communicated to you by us.

8.4 All Fees excluding GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.

8.5 The Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Plan (or part thereof), Plan downgrade or unused Accounts. Downgrading your Plan may result in the loss of content, features or capacity of your Account. We do not accept any liability for any losses or damages that may arise in such cases.

8.6 The Fee is subject to change upon 30 days’ notice from us to you and will apply to your next Plan billing cycle. Such notice may be provided at any time via email. If you do not agree to the Fee change to your Plan, you may terminate these Terms in accordance with clause 16.1.

8.7 If any payment has not been made in accordance with any due date, we may (in our absolute discretion) immediately suspend the provision of the Services.

8.8 If you rectify such non-payment after the Services have been suspended, then we will recommence the provision of the Services as soon as reasonably practicable.

9 Trial Plan

9.1 We may may offer you a free or trial version of the Services, as set out on the Site (Trial Plan).

9.2 Any Trial Plan may have limited features designed to allow you to evaluate the Services and make sure the Services are right for you, before converting to a paid version of the Services.

9.3 You agree:

(a) any Trial Plan can change at any time without notice;

(b) if you are misusing the Services we have the right to immediately terminate the Trial Plan and these Terms with written notice to you; and

(c) the Trial Plan will be governed by and subject to these Terms.

9.4 During the Trial Plan, if you do not wish to convert to a paid Plan, at least one day prior to the end of any Trial Plan period, you must provide written notice to us of your intention to terminate these Terms and these Terms will immediately terminate. If notice is not provided in accordance with this timeframe, the chosen paid Plan will come into effect and then you may only terminate in accordance with clause 16.1.

10 Intellectual Property Rights

10.1 All Intellectual Property in the Software, Platform and all Intellectual Property developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software and the Platform and any content on the Platform) is and will remain owned or licensed exclusively by us or our third party service providers.

10.2 You must not whether directly or indirectly, without our prior written consent: (1) copy or use, in whole or in part, any of our Intellectual Property; (2) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party; (3) reverse assemble, reverse engineer, reverse compile or enhance the Services; (4) breach any Intellectual Property rights connected with the Services, including altering or modifying any of our Intellectual Property; (5) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property; (6) resell, assign, transfer, distribute or make available the Services to third parties; (7) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and (8) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services

11 Your Content

11.1 You may be permitted to post, upload, publish, submit or transmit relevant information and content (User Content) within or via our Services. You will always maintain ownership of your User Content, but when you use the Services we need certain rights from you to use your User Content. By making available any User Content on or through our Services, you grant to us a worldwide, irrevocable, nonexclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, and modify such User Content on, through, or by means of our Services solely for the prupose of providing the Services.

11.2 You agree that you are solely responsible for all User Content that you make available on or through our Services. You represent and warrant that (1) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms to provide the Services; and (2) neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Services will infringe a third party’s Intellectual Property rights or be in the violation of any applicable law or regulation.

12 Third Parties

12.1 You acknowledge and agree that: (1) the provision of the Services may be contingent on, or impacted by, third parties, other users’ use of our services, suppliers, other subcontractors, including third party content (Third Party Inputs); and (2) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of these Terms or law, if such default or breach was caused or contributed to by any Third Party Inputs.

12.2 Our Services may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites.

13 Liability

13.1 Despite anything to the contrary, to the maximum extent permitted by law, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise: (1) our maximum Liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed for any claim, the total amount of Fees you paid to us to which such Liability relates, and (2) we will not be liable to you for any Consequential Loss.

13.2 Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:

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

(b) failure or delay in providing the Services;

(c) breach of these Terms or any Laws; or

(d) the Computing Environment, where caused or contributed to by any:

(e) Force Majeure Event;

(f) a fault, defect, error or omission in the Computing Environment or User Content; or

(g) act or omission by you or any third party (including customers, end users, suppliers, providers or subcontractors), and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.

14 Consumer Guarantees

14.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.

15 Warranties

15.1 We do not warrant that the Services are suitable for use in the operation of nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the SaaS Services could lead to death, personal injury or severe physical or environmental damage.

15.2 You acknowledge and agree that:

(a) you are responsible for all users using the Services; and

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

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

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

(e) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you.

16 Termination

16.1 You may terminate your Account and these Terms at any time, via your Account management dashboard or by emailing us. No refunds will be given upon termination in accordance with this clause. If you give notice to terminate your Account less than 14 days’ before the end of your current Plan billing cycle, then your Plan will renew and continue for a further Plan period and you will be charged for one further Plan period before your Account terminates.

16.2 To the extent permitted by law, we may terminate these Terms, if you (1) breach a material term of these Terms any law, or any third party rights (including intellectual property rights), or (2) fail to pay any amounts owing to us by their due date.

17 General

17.1 Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 16.1. 17.2 Assignment: You may not assign, transfer or otherwise deal with all or any of your rights or obligations under these Terms without our prior written consent.

17.3 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute.

17.4 Removing features: We reserve the right at any time and from time to time to change or remove features of the Services provided that, where there is any material negative alteration to the functionality of the Services in accordance with this clause, we will provide you with 20 Business Days’ notice and you may terminate these Terms by written notice without Liability to us.

17.5 Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

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

17.7 Jurisdiction: These Terms is governed by the laws of Victoria, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

18 Definitions

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria;

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

Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with these Terms (whether involving a third party or a Party to these Terms or otherwise);

Fee means the fee you must pay us for access to the Services based on your chosen Plan;

Force Majeure Event means an event which is beyond a Party's reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person;

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names. Our Intellectual Property includes the Software, and the Platform;

Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);

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

Party means either party to these Terms (you or us), and “Parties” means both parties to these Terms (you and us); and

Plan means the plan you choose, including the Fees, billing cycle and features as set out on the Site and after purchase, as set out within your Account.

For any questions, please contact us at: support@concertoanalytics.com