Seer Data Platform Terms of Service

Last Updated: 10 February, 2020

Welcome to the Seer Data (“Seer”) website located at www.seerdata.com (the “Site”). Please read these Terms of Service (the “Terms”) and our Privacy Policy (“Privacy Policy”) carefully because they govern your use of: (i) our Site, (ii) our data platform available via our Site, (iii) our mobile application (the “App”); (iv) and configuration, setup and training services , if you purchase such services from Seer Data. To make these Terms easier to read, the Site, the App and our services are collectively called the “Services.”

These terms apply to your use of the Seer Data Platform (Platform). Reference to ‘Platform’ in these terms include any New Release of or Update to the Platform from time to time.

1. Use of the Platform

(1) These terms set out the terms on which you may access and use the Platform.

(2) You should read these terms before using the Platform. By using the Platform, you confirm that you agree to these terms and that you will comply with them.

(3) If you do not accept these terms, you must not use the Platform.

2. Term

(1) This Agreement commences on the date you register for the Platform.

(2) The Agreement will continue for the Term, unless terminated in accordance with the provisions of this Agreement.

3. Platform

4. Provision of Platform

(1) Seer Data grants the Customer a non-exclusive licence to access and use the Platform during the Term in accordance with this Agreement.

(2) The parties agree that this Agreement is not exclusive. Seer Data may provide access to the Platform, or similar services, to any party including parties who may be clients or competitors of the Customer.

5. Use of the Platform

(1) The Customer must only access and use the Platform in accordance with this Agreement.

(2) Except as expressly permitted under this Agreement, the Customer must:

(a) not permit or allow any other person to access or use (directly or indirectly) the Platform, Platform Content or the Documentation;

(b) ensure that log-in credentials (including passwords) that are issued by Seer Data to enable the Customer to access the Platform are kept securely and not disclosed, supplied or transferred to any other person;

(c) not sub-license, disclose, resell, publish, transmit or otherwise make available to any third party any part of the Platform or Documentation;

(d) not modify, copy, or create derivative works based on the Platform or the Documentation or reverse engineer the Platform or the Documentation (except to the extent permitted by non-excludable laws) and do not otherwise infringe Seer Data’s Intellectual Property Rights in respect of the Platform or the Documentation;

(e) not use the Platform for hire, rental or as a service bureau;

(f) do all things reasonably necessary so that Seer Data is able to provide the Platform in accordance with this Agreement;

(g) comply with Seer Data’s reasonable directions relating to the Platform;

(h) not store or manage any Personal Information (other than information collected as part of the registration process) on the Platform;

(i) comply with all applicable laws including the Spam Act 2003 (Cth) and the Privacy Act 1988 (Cth);

(j) use the Platform in accordance with Seer Data’s Acceptable Use Policy (if any) and other Documentation;

(k) not send or store unlawful material (including Malicious Code) by means of the Platform;

(l) not attempt to gain unauthorised access to, or disrupt or bypass the security, integrity or performance of, the Platform or any data contained in it; (

(m) not use the Platform in a manner reasonably likely to adversely affect other users of the Platform;

(n) not access or use the Platform in an unlawful manner or for any unlawful purpose; and

(not to use the Platform for the purpose of copying its features or user interface or for creating a product or service that is competitive with the Platform.)

6. Changes to the Platform

(1) Seer Data may make changes to the Platform from time to time, provided that the change does not materially decrease the functionality of the Platform. These changes may include New Releases or changes to the Cloud Provider. Once incorporated, these changes will form part of the Platform.

(2) The Customer acknowledges that a New Release may not be compatible with existing customisations, configurations or interfaces, and that Seer Data is not liable for any cost or expense that the Customer incurs in implementing or correcting any customisations, configurations or interfaces in respect of the New Release.

6.2 Service Levels and Scheduled Maintenance

During the Term, the service levels (Service Levels) that apply to the Platform are as follows:

(a) The Platform will be Available 99.9% of the time in any calendar month between 5am and 9pm Sydney local time Monday to Friday (inclusive) unless otherwise agreed with the Customer.

(2) Seer Data will use reasonable efforts to schedule Scheduled Maintenance at times other than during the hours specified in clause 6.2(1)(a).

(3) Seer Data may carry out maintenance at any time if required to urgently rectify a problem.

(4) The Customer acknowledges and agrees that the Platform may not be Available from time to time while Seer Data undertakes scheduled maintenance, development or other activities (Scheduled Maintenance).

(5) Seer Data will use reasonable efforts to notify the Customer of, and to minimise the duration of, Scheduled Maintenance.

(6) Seer Data will use reasonable efforts to meet the Service Levels.

7. Customer Responsibilities

The Customer must:

(1) provide its own internal facilities (including computers, terminals, software, telecommunications facilities and internet connectivity) necessary for accessing and using the Platform; and

(2) maintain the confidentiality of all login credentials allocated by Seer Data and not disclose them to any third party.

7.2 Use

(1) The Customer is solely responsible for its access to or use of the Platform and must ensure that it complies with this Agreement.

(2) The Customer acknowledges that any access to or use of the Platform by means of a username allocated to it (whether or not such use is in fact by the Customer) is deemed to be access or use by that Customer.

8. Support and Maintenance Services

(1) Seer Data will provide the Support and Maintenance Services to the Customer during the Support Hours in accordance with this Agreement.

(2) The Support and Maintenance Services do not include:

(a) services outside of the Support Hours;

(b) any customisations to the Platform;

(c) any additional training of the Customer’s personnel;

(d) providing on-site assistance;

(e) rectification of any defects resulting from any misuse of the Platform by the Customer; and

(f) investigation or correction of any issues that:

(i) Seer Data is unable to replicate;

(ii) are caused by operator error or improper use of the Platform;

(iii) are caused by use of the Platform in a manner inconsistent with the Documentation or Seer Data’s directions or recommendations from time to time;

(iv) are cosmetic or can be dealt with by use of a reasonable work-around;

(v) are caused by external systems that interface with the Platform, including connectivity failure between the Platform and such external systems; or

(vi) are caused by use of the Platform in combination with systems or software that is not approved or authorised by Seer Data.

(3) The Customer acknowledges and agrees that requests for Support and Maintenance Services must be made through the Platform.

9. Exclusions

Unless otherwise agreed in writing, the Services do not include the following:

(1) rectification of a fault in hardware, equipment or telecommunications links or telecommunications services;

(2) supply and installation of consumables or hardware;

(3) rectification of any defects resulting from the Customer not performing its responsibilities and obligations in an accurate, complete and timely manner;

(4) rectification of errors or failures caused by failure of hardware, power, air-conditioning or other environmental failure;

(5) recovery or rectification of corrupt, lost or missing Customer Data or other data;

(6) responding to or rectification of the effects of a Force Majeure Event including vandalism, failure or any disruption or alteration of electrical power, air- conditioning, humidity control or any other environmental factor; or

(7) service calls attributable to use, misuse or fault in hardware or software other than the Platform.

10. Fees

11. Payment of Fees

The Customer must pay Seer Data the pricing for the platform access as agreed.

12. Invoice

Seer Data will invoice the Customer for the Fee on or before the date on which the Fees are due. The invoice must be a valid tax invoice. The Customer must pay the tax invoice within 7 days of the date of the invoice.

13. GST

Capitalised expressions in this clause have the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Any amount that may be payable under this Agreement is exclusive of any GST. If a party makes a Taxable Supply in connection with this Agreement for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. The Recipient’s obligation to pay GST is subject to a valid Tax Invoice being delivered.

14. Intellectual Property

(1) As between the Customer and Seer Data, Seer Data owns the Intellectual Property Rights in Platform Content. The Customer assigns any and all the rights that the Customer may have in the Platform Content to Seer Data, and agrees to execute all additional documents requested by Seer Data to give effect to such assignment. For the avoidance of doubt, nothing in this agreement affects, or is intended to affect, the ownership of the Platform or Platform Content, or gives the Customer the right to sell of exploit the Platform or Platform Content.

(2) As between the Customer and Seer Data, Seer Data owns the Intellectual Property Rights in the Platform and the Documentation. The Customer acquires no rights in respect of the Platform or the Documentation other than those expressly granted under this Agreement.

(3) Seer Data owns all improvements, adaptations and modifications made to the Platform, platform content and all related Intellectual Property Rights, including any suggestions, enhancement requests, recommendations or other feedback provided by the Customer. The Customer assigns any and all the rights that the Customer may have in those improvements and modifications to Seer Data, and agrees to execute all additional documents requested by Seer Data to give effect to such assignment.

(4) To the extent that Seer Data (or its licensees or assignees) develops any New Releases, Updates, or new versions of the Platform, Seer Data will own the Intellectual Property Rights in respect of them.

(5) Seer Data grants the Customer a non-exclusive, non-transferable and limited licence for the Customer:

(a) to access and use the Platform and the Third Party Data during the Term in accordance with this Agreement;

(b) use dashboards, visualisations or other material generated in the course of the Customer’s use of the Platform, during the Term, in accordance with this Agreement and, in each case only for the Customer’s internal business purposes (or as otherwise agreed by the parties in writing); and

(c) to use the Platform Content in perpetuity;

in each case only for the Customer’s internal business purposes (or as otherwise agreed by the parties in writing).

(6) Seer Data may, on notice to the Customer, amend the terms of the licence granted under this Agreement in respect of the Third Party Data (or a subset of the Third Party Data) should it become necessary to do so as a result of a change in the licensing terms upon which Seer Data licences the Third Party Data (or subset of the Third Party Data). The Customer will be deemed to agree to these amendments if the Customer continues to use the Platform after receipt of the amended terms. If the Customer does not agree to the amended terms, the Customer may terminate this Agreement with without liability by providing written notice to Seer Data.

15. Customer Data

15.1 Ownership of Customer Data

(1) The Customer will own and retain all right, title and interest in and to the Customer Data.

(2) Seer Data will not use or disclose the Customer Data except to the extent required to perform its obligations under this Agreement. The Customer Data will only be available on the Platform for use by the Customer.

(3) The Customer grants Seer Data a non-exclusive licence for Seer Data to use the Customer Data for the purposes of performing its obligations under this Agreement.

15.2 Responsibility for Customer Data

(1) The Customer will be responsible for the content of all Customer Data and for complying with all applicable laws in respect of the Customer Data.

(2) Without limiting the generality of clause 15.2(1), the Customer must ensure that it has obtained all necessary licences, consents or authorisations, and given all necessary notices, as are required by law (including the Privacy Act 1988 (Cth)) for Seer Data to receive, store and process the Customer Data as part of providing the Platform.

15.3 Security of Customer Data

(1) Seer Data will implement reasonable measures to ensure that Customer Data is protected from misuse, interference and loss, and unauthorised access, modification or disclosure. Provided that Seer Data has implemented those reasonable measures, Seer Data will not be liable for any misuse, interference and loss, and unauthorised access, modification or disclosure of Customer Data.

(2) Seer Data will use reasonable endeavours to notify the Customer of any unauthorised access to or disclosure of the Customer Data.

15.4 Location of Customer Data

(1) The Customer acknowledges that, as part of providing the Platform, Seer Data may store or process Customer Data at a location outside Australia (including on overseas systems operated by the Cloud Provider). At the Customer’s request, Seer Data will provide the Customer with a list of all jurisdictions in which the Customer Data may be held.

15.5 Deletion of Customer Data

The Customer acknowledges that Seer Data may delete or destroy all:

(1) Customer Data stored on the Platform; and

(2) Platform Content relating to the Customer,
at any time after expiry of the Data Extraction Period set out in clause 36.1(1)(d)

16. Confidentiality

16.1 Confidential Information

(1) A party receiving Confidential Information under this Agreement (Receiving Party) must not, without the prior written approval of the party disclosing that Confidential Information (Disclosing Party), disclose that Confidential Information (or any part of that Confidential Information) or use it for any purpose other than the purposes of this Agreement or the purposes for which that Confidential Information was provided or made available to the Receiving Party.(

(2) For the purposes of clause 16.1(1), Confidential Information:

(a) in respect of both parties, includes information:

(i) which is by its nature confidential;

(ii) is communicated by the Disclosing Party to the Receiving Party as confidential; and

(iii) the Receiving Party knows or ought to know is confidential; and

(b) in respect of Seer Data, includes the Platform and the Documentation.

17. Exceptions

The Receiving Party is not in breach of clause 16.1 to the extent that:

(1) the Confidential Information is or becomes publicly available without breach of this Agreement; or

(2) the Receiving Party is required by law or any court to disclose the Confidential Information. Before disclosing the Confidential Information under this clause 17.1(2), the Receiving Party must give the Disclosing Party sufficient prior written notice to enable the Disclosing Party to seek a protective order or other relief from disclosure.

18. Steps to avoid disclosure

The Receiving Party must take all reasonable steps to ensure that its officers, employees, agents and contractors do not make public or disclose the Confidential Information in breach of this clause 16.

19. Liability, warranties and disclaimers

20. Warranty as to authority

Each party warrants that it is empowered and authorised to enter into this Agreement.

21. Seer Data warranties

(1) Seer Data warrants that the Platform will operate in accordance with the Documentation.

(2) Seer Data warrants that to the best of its knowledge the use of the Platform in accordance with this Agreement by the Customer will not infringe the Intellectual Property Rights of any third party.

22. Exclusion of implied warranties

All statutory or implied conditions, guarantees and warranties are excluded by Seer Data to the maximum extent permitted by applicable law. To the extent permitted by law, where liability under any condition, guarantee or warranty which cannot legally be excluded but can be validly limited, such liability is limited to:

(1) in the case of goods (including the Documentation), the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and

(2) in the case of the services (including the Support and Maintenance Services), supplying the services again; or paying the cost of having the services supplied again.

No other warranties

(1) Other than as set out in these terms, we make no warranties, representations, undertakings or guarantees that (a) the Platform or any content on it, or any Platform Content will be free from errors or omissions; or (b) access or use of the Platform of the Platform Content will result in a specific intended outcome, including the achievement of a business or community benefit or outcome.

(2) To the maximum extent permitted by law and subject to clause 21, Seer Data disclaims and excludes any warranty, representation or undertaking as to the purpose for which the Services and Documentation may be suitable, including any purpose for which the Customer intends to use the Services and Documentation.

(3) The Customer warrants to Seer Data that it has not relied on any representation made by Seer Data which has not been stated expressly in this Agreement, or upon any descriptions or specifications contained in any document including brochures, marketing and promotional materials produced by Seer Data.

(4) While Seer Data has taken due care in developing the Platform, to the extent permitted by law, Seer Data does not warrant, and excludes all representations and warranties that:

(a) While Seer Data has taken due care in developing the Platform, to the extent permitted by law, Seer Data does not warrant, and excludes all representations and warranties that the data which is contained in the Platform or Platform Content is error-free or has no defects;

(b) the data which is contained in the Platform, including the Third Party Data, is accurate or error-free;

(c) access to the Platform will be uninterrupted or error free;

(d) the Platform is free from Malicious Code; or

(e) the Platform meets the Customer’s requirements or is compatible with all operating systems and browsers; or

(f) the Platform or the Services is fit for purpose.

24. Limitation and exclusion of liability

(1) Despite any other provision of this Agreement and to the maximum extent permitted by applicable law, neither party is liable to the other party under contract, tort or otherwise in any circumstances for any indirect, economic, special or consequential loss or damage, or for any loss of revenue, loss of production, loss of Customer Data or other data, loss of use, loss of profit or loss of anticipated savings.

(2) Subject to clause 22 and any laws the application of which may not be lawfully excluded, Seer Data’s aggregate liability to the Customer in any circumstances (including liability for negligence) arising out of or in connection with this Agreement, the Services, the Documentation or their use, in respect of all events that give rise to liability, will not exceed, and is expressly limited to, the total amount paid by the Customer to Seer Data in the 12 months prior to the relevant act or omission that gave rise to the liability.

(3) Any claim for liability under the Agreement must be made within 12 months of the party becoming aware of the relevant breach or other facts.

24.2 Disclaimer

The Customer agrees that it entered into this Agreement without relying on any warranty, representation or comments concerning any future functionality or features of the Platform, and that the Customer has not relied on any warranty, representation or comments made by Seer Data, including any road maps, with respect to future functionalities or features of the Platform.

25. IP Indemnity

26. Indemnity for third party claims

Subject to clauses 27 and 28, Seer Data indemnifies the Customer from and against any and all losses suffered or incurred by the Customer resulting from any claim, action or proceedings against the Customer by any third person (other than a related body corporate of Customer or a person associated commercially with the Customer) in connection with the Customer’s use of the Platform, alleging an infringement by the Platform itself of the Intellectual Property Rights of any third party (Third Party Claim), but only to the extent:

(1) that the losses are awarded by the final judgment of a court of competent jurisdiction; or

(2) of any settlement pursuant to this clause

27. Procedures

If a Third Party Claim is made then:

(1) the Customer must notify Seer Data as soon as practicable;

(2) Seer Data may at its own cost have the sole right to conduct the defence of the Third Party Claim in the name of the Customer or negotiate any settlement of the Third Party Claim; and

(3) Seer Data may elect at its sole discretion to do one or more of the following:(

(a) modify, or arrange for the modification of, the Platform (but without adversely affecting its functionality) to render its use non-infringing;

(b) at no cost to the Customer, render the relevant activity non-infringing by procuring the right to exercise the relevant Intellectual Property Rights of the relevant person; or

(c) terminate this Agreement and refund the Customer a pro-rata amount of any paid Fee in respect of the remaining portion of the Term, and clause36 will apply.

28. Limitations

Seer Data has no liability to the Customer for any claim of infringement of Intellectual Property Rights arising from:

(1) the Customer’s non-compliance with the Documentation or any instruction, directions or specifications issued by Seer Data in relation to the Platform;

(2) the use of the Platform in combination with any system, software or item not provided by Seer Data;

(3) the failure of the Customer to use a New Release; or

(4) the use of the Platform in a manner contrary to this Agreement or the intended use of the Platform.

29. Entire liability

Despite any other provision in this Agreement, clause 27.1(3) states the sole remedy of the Customer and entire liability of Seer Data in relation to any allegations or claims of infringement of Intellectual Property Rights by any person in relation to the Platform or its use.

30. Indemnity by the Customer

The Customer indemnifies Seer Data from and against any and all losses suffered or incurred by Seer Data arising out of or in connection with any claim, action or proceedings against Seer Data by any third person alleging that:

(1) the Customer Data or Seer Data’s access, use or hosting of the Customer Data on the Platform infringes the rights of that third party; and

(2) the use by the Customer of the Platform in breach of this Agreement or the Documentation infringes or violates the rights of the third party (including Intellectual Property Rights and rights under any applicable privacy law).

31. Cloud Provider

The Customer acknowledges and agrees that the Availability of the Platform depends upon permissions and services from the Cloud Provider. If there is a change in respect of the services provided by the Cloud Provider or if a new Cloud Provider is appointed Seer Data will use reasonable efforts to minimise the effect of the change on the Platform. Seer Data will also use reasonable efforts to give reasonable notice of any change in connection with the Cloud Provider that is likely to adversely affect the Platform. If Seer Data uses those reasonable efforts, Seer Data will have no liability whatsoever relating to a change in connection with the Cloud Provider.

32. Suspension

(1) Seer Data may suspend the access to, and use of, the Platform by Customer in the following circumstances:

(a) for any non-payment of Fees by the Customer;

(b) for the duration of any Force Majeure Event (as defined in clause 39);

(c) for any material breach of this Agreement by the Customer;

(d) if Seer Data reasonably considers that suspension is necessary to protect the Platform, the Customer Data, other customers, or any other computer systems and data (including in response to an external attack); or

(e) any other circumstances where it would be entitled to terminate this Agreement.

(2) Seer Data will give the Customer as much practicable prior notice of the suspension as possible, and will promptly end the suspension after the relevant circumstances have abated. However, if Seer Data has the right to terminate this Agreement, Seer Data may exercise those rights during any period of suspension.

33. Termination

34. Termination for cause by either party

(1) Either party may terminate this Agreement immediately by notice in writing if:

(a) the other party is the subject of an Insolvency Event; or

(b) the other party fails to comply with any material provision of this Agreement and, if that breach is capable of remedy, fails to remedy that failure within 20 Business Days after notice requiring it to be remedied.

(2) If this Agreement is terminated under clause 34(1)(b) by the Customer, Seer Data will refund to the Customer the amount of the Fees paid in advance in respect of the remaining portion of the Term.

35. Termination for cause by Seer Data

In addition to any other rights Seer Data may have in this Agreement, Seer Data may terminate this Agreement immediately if:

(1) Customer fails to pay any invoice within 15 Business Days after payment is due and such amount remains unpaid; or

(2) Customer assigns or otherwise disposes of any interest or right it has under this Agreement without the prior written consent of Seer Data.

36. Effect of termination

(1) Upon termination of this Agreement for any reason:

(a) the Customer must promptly pay all Fees and other amounts owing under this Agreement;

(b) unless expressly set out otherwise, Seer Data is not required to provide the Customer any refund of any paid Fees;

(c) all rights and licences granted under this Agreement terminate immediately, and the Customer must immediately cease to use the Platform and the Documentation, and return to Seer Data or destroy all copies of the Documentation; and

(d) subject to the Customer paying all outstanding Fees, Seer Data will continue to provide the Customer with access to the Platform for a period of 10 Business Days (Data Extraction Period) for the sole purpose of allowing the Customer to extract the Customer Data from the Platform. Seer Data may disable other functionality of the Platform during the Data Extraction Period.

(2) Clauses 14, 15, 30, 36 and 37 survive termination of this Agreement.

37. General

38. No assignment

(1) The Customer must not transfer, sub-licence or assign any benefit or obligation under this Agreement to any third party without the prior written consent of Seer Data.

(2) Seer Data may transfer, sub-licence or assign any benefit or obligations under this Agreement to any third provided it notifies the Customer.

38.2 Subcontract

Seer Data may subcontract the performance of any part of its obligations to any person. Seer Data will remain responsible to the Customer for the performance of any subcontracted obligations.

39. Force majeure

Seer Data will not be liable for any or failure to perform or delay in performing any obligations under this Agreement to the extent caused by any cause or condition beyond its reasonable control (Force Majeure Event). The obligations of Seer Data are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.

40. Severability

If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.

41. Further assurance

Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.

42. Entire understanding

This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.

43. Variation

An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

44. Waiver

A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

45. Notices

46. A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.

(1) In addition to any other method of service provided by law, the Notice may be:

(a) sent by prepaid priority post to the address of the addressee;

(b) sent by email to the addressee; or

(c) delivered at the address of the addressee.

(2) The notice details for the Customer are those provided during the registration process. Seer Data’s contact details are set out on its website.

(3) If the Notice is sent or delivered in a manner provided by clause 46.1(1), it must be treated as given to and received by the party to which it is addressed:

(a) if sent by post, on the 4thBusiness Day (at the address to which it is posted) after posting;

(b) if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or

(c) if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

(4) Despite clause 46.1(3)(b):

(a) an email message is not treated as given or received if, within 2 hours after the time sent, the sender receives an automated message that the email has not been delivered; and

(b) an email message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 2hours after the transmission ends or by 12noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.

(5) A Notice sent or delivered in a manner provided by clause 46.1(1) must be treated as validly given to and received by the party to which it is addressed even if:

(a)the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or

(b) the Notice is returned unclaimed.

47. Governing law and jurisdiction

The law of the New South Wales governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia situated in New South Wales.

2. Definitions and interpretation

47.1 Definitions

In this Agreement, unless the contrary intention appears:

48. Acceptable Use Policy means the policy (if any) published by Seer Data, as amended or replaced by Seer Data from time to time;

49. Agreement means these terms:

50. Available means that the Platform is accessible from the internet. To avoid doubt, the Platform remains Available even if the Customer is unable to access them because of internet connectivity or software issues affecting the Customer;

51. Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in New South Wales;

52. Cloud Provider means a service provider that provides the computing infrastructure (including on a managed service or “as a service” basis) from which the Platform is provided, as determined by Seer Data from time to time;

53. Confidential Information has the meaning given to it in clause 16.1(2);

54. Customer, you or your means you, your company, your employer and any and all persons who access the Platform for or on behalf of you, your company or your employer (including officers, employees, agents and contractors).

55. Customer Data means:

(a) data provided by the Customer to Seer Data to be incorporated into (and stored on) the Platform for use by the Customer; and

(b) all content uploaded to the Platform by the Customer, including graphics, photographs and text;

56. Data Set means a collection of data (that may include Third Party Data and any other data that may be derived or generated by Seer Data) that is made available as part of the Platform for use by the Customer;

57. Documentation: means the user guides, training material, frequently asked questions and similar materials relating to or for the Platform, as provided by Seer Data in its discretion to the Customer from time to time;

58. Fees means all fees and charges payable by the Customer under this Agreement;

59. Force Majeure Event has the meaning given to that term in clause 39;

60. Insolvency Event means the happening of any of these events in relation to a party (Insolvent Party):

(a) the Insolvent Party suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001(Cth);

(b) the Insolvent Party ceases, or threatens to cease, to carry on business; or

(c) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the Insolvent Party assets or undertakings, an application or order is made for the winding up or dissolution of the Insolvent Party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Insolvent Party (except for the purpose of an amalgamation or reconstruction which has been notified to the other party in writing);

61. Intellectual Property Rights means copyright, trademark, moral rights, confidential information, design, patent, trade, business or company names, or other proprietary rights, or any rights to the registration of those rights and any applications to register those rights (anywhere in the world);

62. Malicious Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

63. New Release means a new release of the Platform (other than an Update) that Seer Data makes generally available from time to time to all customers of the Platform;

64. Personal Information has the meaning given to the term in section 6 of the Privacy Act 1998 (Cth);

65. Platform Content means:

(a) any dashboards, visualisations or other material generated in the course of the Customer’s use of the Platform;

(b) any material that may be created using or in the course of the usage of the Platform;

(c) the Data Set,

(d) any documents, reports or other materials which contain the content or materials mentioned in (a), (b) or (b) above;

(e) any changes to, updates of, or new release of, the content or materials mentioned in (a), (b), (c) or (d) above.

but does not include the Customer Data or the Third Party Data.

66. Scheduled Maintenance has the meaning given to it in clause 6.2(4);

67. Seer Data means Seer Data & Analytics Pty Ltd (ACN 616 067 899);

68. Services mean:

(a) provision of access to the Platform under this Agreement;

(b) the Support and Maintenance Services; and

(c) any other service performed by Seer Data in connection with this Agreement;

69. Service Levels means the service levels set out in clause 6.2 of this Agreement;

70. Support Hours means the hours between 9am and 5pm on a Business Day;

71. Support and Maintenance Services means:

(a) providing the Customer with access to an online service desk during the Support Hours;

(b) providing the Customer with access to the Platform, through which the Customer can access the Documentation; and

(c) all reasonable efforts to investigate and resolve incidents and issues concerning availability issues and material compliance of the Platform with the Documentation,

each in respect of the Platform;

72. Term means the term of the Agreement specified by the Customer during the registration process. If no term is defined, the Term is 12 months from the date of registration;

73. Third Party Data means data which has been sourced from third parties other than the Customer and which is made available through the Platform; and

74. Updates means fixes, patches and updates to the Platform which do not materially change the functionality of the Platform and which Seer Data makes generally available from time to time to all customers of the Platform.

74. Interpretation

In this Agreement, unless the context otherwise requires:

(1) reference to the singular includes the plural and the plural includes the singular, a person includes a body corporate and a party includes the party’s executors, administrators, successors and permitted assigns;

(2) a reference to money is to Australian dollars, unless otherwise stated;

(3) a reference to a thing or to a right includes a reference to part of the thing or the right;

(4) “including” and similar expressions are not words of limitation;

(5) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

(6) headings are for convenience only and do not form part of this Agreement or affect its interpretation;

(7) a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement;

(8) if an act must be done on a specified day that is not a Business Day, it must be done instead on the next Business Day;

(9) if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;

(10) an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly; and

(11) a party which is a trustee is bound both personally and in its capacity as a trustee.

Contact Information

If you have any questions about these Terms or the Services, please contact Seer Data at seer@seerdata.com.au