Australia

INTRODUCTION

Datanest software (datanest) is owned and operated by Datanest Software Limited (DSL).  Datanest is a suite of software programmes which allow users to collect data, upload and analyse data, create maps and figures and  produce scientific reports on a project-by-project basis.

Please read these Terms and Conditions carefully before using Datanest.  Datanest is not intended to be a substitute for professional judgment and you should not act in reliance upon it without first obtaining professional advice as to your particular circumstances.

Your access to and use of Datanest is conditional on your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all users of Datanest. By accessing or using Datanest you agree to be bound by these Terms and Conditions. If you do not accept any part of these Terms and Conditions, then you may not access Datanest.

AGREEMENT

1.  DEFINITIONS AND INTERPRETATION

1.1  In these Terms and Conditions, unless the context indicates the contrary:

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised Users means any agents, employees or contractors of the Client who are approved by the Client to use Datanest.

Datanest means the Datanest software suite and all current and future modules owned and operated by DSL which provides a platform for Clients to collect data, upload and analyse data, create maps and figures and produce scientific reports on a project-by-project basis.  Datanest includes, for the avoidance of doubt, the website (at the domain datanest.earth), and DSL's servers and the Documentation.

Client means any user who DSL has given permission to access and use Datanest in accordance with these Terms and Conditions.

Client Data means:

1.  all data, samples, information (including personal information) and other material of any nature entered into or uploaded to Datanest by the Client or accessed or stored by DSL in any form for processing, storage, hosting or for any other use by DSL in relation to the provision of Datanest;

2.  all data, outputs, images, information, reports and other material generated by the Client's use of Datanest; and

3.  includes, without limitation, any information provided to DSL in order to register, access and use Datanest including any information in relation to the Client's business, systems or networks or any information relating to the Client's employees, contractors, or any other third parties.

Customisation(s) means a development, enhancement or other modification to Datanest which is undertaken by DSL at the request of the Client.

Documentation means any user and technical documentation supplied, or to be supplied to the Client by DSL and includes any software specifications.

DSL means Datanest Software Limited, a New Zealand registered limited liability company.

Fee means the sum payable by the Client for their use of Datanest in accordance with clause 8 of these Terms and Conditions.

GST means the tax imposed under the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any amendments thereof.

Insolvency Event in relation to a party (insolvent party) means:

a.  the insolvent party ceases or takes steps to cease to conduct its principal business in the normal manner;

b.  the insolvent party 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;

c.  the insolvent party is unable to pay its debts when they are due or is deemed under the

Corporations Act 2001 (Cth) to be insolvent;

d.  a liquidator or provisional liquidator is appointed to the insolvent party or a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the insolvent party; 

e.  an application or order is made or a resolution is passed of the winding up of the insolvent party; or 

f.  is removed from the Register of Companies.

Intellectual Property Rights includes copyright, and all current and future registered and unregistered rights conferred under statute, common law or equity in in respect of designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions, discoveries, trade secrets, know-how, domain names, rights in databases, and all other proprietary rights, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or license in or to any of the foregoing.

Privacy Act means the Privacy Act 1988 (Cth).

Tax Invoice has the meaning it has in the GST Act.

Terms and Conditions means these Terms and Conditions as may be amended by DSL from time to time.

Third Party Software means any computer software program owned and operated by a third party which DSL has incorporated or integrated into Datanest and which DSL is not otherwise authorised to sub-license to the Client.

Geographic License Region means within Australia.

1.2  In these Terms and Conditions unless the contrary intention appears:

a.  the singular includes the plural and vice versa;

b.  a reference to these Terms and Conditions or another instrument includes any variation or replacement of them;

c.  a reference to a clause number is a reference to a clause in these Terms and Conditions;

d.  the word "person" includes a firm, a body corporate, a partnership, joint venture, an

unincorporated body or association, or any government agency;

e.  a reference to a statute, ordinance, code or other law includes regulations and other instruments under it, and consolidations, amendments, re-enactments and/or replacements of any of them;

f.  if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

g.  a reference to a month is to a calendar month;

h.  a reference to a day is to a calendar day;

i.  a reference to a thing (including any amount) is a reference to the whole and each part;

j.  the verb "include" (in all its parts, tenses and variants) is not used as, nor is it to be

interpreted as, a word of limitation;

k.  the words "including", "for example" or "such as" do not limit the meaning of the words to

which the example relates or examples of a similar kind;

l.  Australian dollars, dollars, AU$, or $ is a reference to the lawful currency of Australia; and

m.  headings are inserted for convenience and do not affect the interpretation of these Terms and Conditions.

2.  ACCESS TO AND USE OF DATANEST

2.1  In consideration of the Client's obligation to pay the Fees under clause 8, DSL grants to the Client a non-exclusive, non-assignable licence to access and use Datanest in accordance with these Terms and Conditions.

2.2  The Client agrees to use Datanest in a manner that complies with all applicable laws and regulations and that does not infringe upon DSL's rights, nor the rights of any third parties, nor restricts or inhibits their use and enjoyment of Datanest.

2.3  The Client may not, without DSL's prior written permission, in any form or by any means:

a.  allow Datanest to be used by any persons other than the Client or its Authorised Users;

b.  adapt, reproduce, copy, store, distribute, print, display, perform, publish or create adaptions from any part of Datanest, other than for the purpose of fulfilling the purposes for which Datanest is being supplied;

c.  use any device, including any software which interferes with the usual operation of Datanest;

d.  use the Datanest name or branding material to promote the Client's business without DSL's express prior approval, and such use must comply with any conditions imposed by DSL;

e.  commercialise, copy, or on-sell any information, or materials obtained from any part of

Datanest; 

f.  assign or sub-contract any of its rights or obligations under these Terms and Conditions to any third party; or

g.  Use the software license outside of the Geographic License Region.

2.4  The Client is responsible for ensuring that:

a.  at all times, it meets the system requirements which are necessary to access and use Datanest and that it will take reasonable steps to ensure that any computer used to access Datanest is protected against computer viruses and unauthorised access; and 

b.  all of its Authorised Users who are approved to use Datanest comply at all times with these Terms and Conditions.

3.  CLIENT DATA 

3.1  DSL will host all of the Client's Data entered into Datanest on DSL's cloud server or a third party server.  DSL's cloud server and/or third party server is regularly backed up and DSL will use reasonable endeavours to maintain effective security measures to safeguard Client Data from unauthorised access, use, copying or disclosure.  However, the Client acknowledges that, subject to DSL's obligations under the Privacy Act, DSL shall not be responsible for any Client data which is lost, stolen, copied, deleted or subject to unauthorised access or use.

3.2  It is the Client's sole responsibility to ensure the accuracy of, and to maintain copies of, any Client Data entered into or uploaded to Datanest.

3.3  DSL does not take any responsibility for the Client Data which the Client chooses to upload to Datanest.  DSL does not pre-screen or monitor the content of any Client Data. Without limiting clause 11, in no event shall DSL be liable for any claims made in relation to the Client Data including, but not limited, to any misleading statements made and/or incorporated into any Client Data. 

4.  REGISTRATION AND SECURITY OF PASSWORDS

4.1  By signing up for Datanest, the Client agrees that all information provided during the registration process is true and accurate and the Client will update this information as required in order to keep it current, complete and accurate.

4.2  During the registration process, the Client will be issued a password for Datanest to operate a Client account. The Client agrees to be fully responsible for activities that relate to its Client account including the actions of all Authorised Users and for maintaining the confidentiality of its password.  If the Client has any reason to believe that its password has been obtained by someone else without its consent, the Client must inform DSL immediately to disable the Client's account, if required.

5.  OWNERSHIP OF INTELLECTUAL PROPERTY

5.1  The Client acknowledges that all Intellectual Property Rights and other rights in Datanest remain the property of DSL (other than Third Party Software). 

5.2  The Client shall notify Datanest as soon as reasonably practicable if it becomes aware of:

a.  any infringement of any of Datanest's Intellectual Property Rights;

b.  any defect in its use of Datanest; or 

c.  any material matters that may be of concern to the Client concerning Datanest which come to the attention of the Client.

5.3  When you use our services, we may create anonymised statistical data from your data and usage of our services, including through aggregation. Once anonymised, we may use it for our own purposes, such as to provide and improve our services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you

5.4  When you enter or upload your data into our services, we don't own that data but you grant us a licence to use, copy, transmit, store, analyse, and back up all data you submit to us through our services, including personal information of yourself and others, to: enable you to use our services; allow us to improve, develop and protect our services; create new services; communicate with you about your subscription; and send you information we think may be of interest to you based on your marketing preferences.  

5.5  The Client: 

a.  warrants that it has the right and title to grant DSL the license described in clause 5.4; and

b.  agrees to indemnify and keep indemnified DSL against any claim, proceeding, damage, liability, loss, cost or expense (including legal costs on a solicitor and own client basis), whether arising in contract, tort (including for negligence) or otherwise arising out of or in connection with a breach of clause 5.5(a):

5.6  All Intellectual Property Rights in the Client Data remain property of the Client. DSL cannot use, copy, transmit, store or back-up Client Data except for in limited circumstances as set out in DSL's privacy policy, available at https://www.datanest.earth/privacy-policy-aus.  The Client agrees to grant DSL a limited licence to use, copy, transmit, store, and back-up Client Data for the limited purposes of:

a.  enabling the Client to access and use Datanest; and 

b.  for any other purpose related to provision of Datanest to the Client.

6.  THIRD PARTY INFORMATION

6.1  Datanest stores and provides the Client with access to a wide range of information created or provided by third parties which can be utilised by the Client to assist them to analyse, assess and customise its Client Data (including but not limited to a number of national and international environmental guidelines) (Third Party Information).  Without limiting clause 11, in no event shall Datanest be responsible for the accuracy or reliability of any Third Party Information made available to the Client via Datanest.  

7.  CONTINUITY OF SERVICE

7.1  DSL will use reasonable endeavors to provide access to Datanest on a continuous basis, subject to any necessary downtime that may be required for system maintenance, repairs and updating, or loss of access resulting from matters beyond DSL's control.  

7.2  When scheduling systems maintenance, repairs or updates to Datanest, DSL will use reasonable means to contact the Client to inform them in advance of the scheduled downtime.  However, the Client acknowledges DSL may be required to, without notice to the Client, undertake emergency maintenance, repairs or updates, or otherwise suspend access to Datanest due to circumstances outside DSL's control.

7.3  Subject to clauses 7.2 and 7.4, DSL reserves the right to suspend, or otherwise alter the Client's access to and use of Datanest at any time and without notice in the case of:

a.  periodic maintenance;

b.  updates or software upgrades; 

c.  where a threat has been identified to the security of Datanest;

d.  a failure by the Client to make payment of any Fee payable to DSL on the due date; 

e.  a breach of these Terms and Conditions by the Client; 

f.  a requested Customisation by the Client; or 

g.  DSL otherwise being prevented from providing Datanest for reasons beyond its control.

7.4  When scheduling suspensions or access to Datanest for any of the above reasons, DSL will use reasonable means to contact the Client to inform them in advance of any suspension or alteration of their access to and use of Datanest.  Without limiting clause 11, in no event shall Datanest be responsible for any loss arising from any delay or loss of access to and use of Datanest at any time.  Where access to Datanest is suspended or altered under clause 7.3, the Client must continue to pay the applicable Fees, unless such suspension or alternation is caused by any willful, unlawful or negligent act or omission by DSL.

8.  PRIVACY

8.1  DSL collects information from and about the Client in accordance with DSL's privacy policy, including but not limited to the Client's name and contact details, upon registering for Datanest. Such information is provided by the Client voluntarily. DSL may also collect and store information about the Client's use of Datanest, for example, the pages accessed and how many times the Client accesses Datanest.

8.2  All Client Data (including the information referred to in clause 8.1) will be stored on DSL's cloud server or via a third-party server.  Any such information will only be used by DSL for its own statistical purposes. DSL will never disclose any Client Data to any third party without first obtaining the Client's consent, unless DSL is otherwise obliged or permitted by law to disclose it.  To the extent that any Client Data is personal information (as defined in the Privacy Act) then the Client is entitled to access and correct such personal information held by DSL.  

9.  FEES

9.1  DSL agrees to grant the Client the right to access and use Datanest in consideration of the Client's payment of the relevant Fees.  

9.2  The Fee for using Datanest will be determined by your subscription type. Generally your pricing plan will consist of a monthly fee with a limit on the number of projects that can be produced over a given timeframe and the number of users able to access the software.  The pricing plan may vary by region and prices are subject to change over time. If prices are to be adjusted you will be notified prior to any changes being made and you have the right to cancel your subscription by providing 14 days written notice to DSL.

9.3  All Client Data entered into or uploaded to Datanest will be archived for 365 days following the project establishment date, or a longer period if required by law.  If the Client requires any Client Data to be archived for a period greater than 365 days, then the Client will be required to pay a storage fee.   

9.4  DSL may provide the Client with the ability to pay any Fees by credit card.  All Fees paid through a third party payment services provider are subject to that third party's terms of service, and DSL will not be responsible for anything contained therein. The Client is responsible for payment of any taxes or transaction costs associated with payment of the Fee.

9.5  In the event that payment of the Fee is not received by DSL within the specified timeframe in the Tax Invoice, DSL will be entitled to suspend the Client's access to and use of Datanest, until such time as payment is received but without prejudice to clause 13 and provided the relevant Fees are not in dispute.  

9.6  All Fees and other charges are inclusive of any and all taxes and duties apart from GST.  The Client will pay GST at the prevailing rate on the amount of the Fee at the same time and in the same manner as the Fee is payable.

9.7  From time to time, DSL (or others on DSL's behalf) may offer trials to use Datanest  for a specified period without payment or at a reduced rate (a "Trial"). DSL reserves the right, in its absolute discretion, to determine the Client's eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.

9.8  Clients may request a Customisation of Datanest for their particular use.  Any Customisations may be subject to additional Fees.  A Fee proposal will be issued at the time of the Customisation request to indicate the costs associated (if any) with the Customisation.

9.9  If the Client disputes any amount in a Tax Invoice issued under clause 9.2, the Client shall:

a.  notify Datanest as soon as reasonably practicable, identifying the amount in dispute and the reasons for the dispute; and

b.  pay by the due date any balance of the Tax Invoice which is not in dispute.

10.  WARRANTIES

10.1  The Client's use of Datanest is at the Client's own risk.  To the fullest extent permitted by law and subject to clauses 10.3 and 10.4, Datanest is provided on an "as is" and "as available basis" and is provided by DSL without any warranties of any kind, either express or implied.  To the fullest extent permissible by law, Datanest does not warrant that:

a.  access to Datanest will be uninterrupted, or secure, or that Datanest will be error free and that such errors or minor defects will be corrected;

b.  Datanest will be fit for the Client's particular purpose, or for any other purpose; 

c.  Third Party Information made available via Datanest which is used or accessed by the Client is accurate, adequate, current, complete or suitable for the Client's intended use; 

d.  all data, outputs, images, information, reports, results and other material generated by the Client's use of Datanest is fit for the Client's particular purpose, reliable or accurate; and 

e.  any results obtained or generated from Datanest will be in accordance with the Client's expectations.

10.2  Datanest may come with guarantees that cannot be excluded under the Australian Consumer Law. 

10.3  The following applies where the Australian Consumer Law applies to the provision of any services under these Terms and Conditions, and any warranties against defects are offered to the Client by DSL under these Terms and Conditions:

a.  Datanest comes with guarantees that cannot be excluded under the Australian Consumer Law.

b.  For major failures with Datanest, the Client is entitled:

i.  to cancel its subscription with DSL; and

ii.  to a refund for the unused portion of, or compensation for its reduced value.

c.  The Client is also entitled to choose a refund or replacement for major failures with Datanest.  If a failure with Datanest does not amount to a major failure, the Client is entitled to have the failure rectified in a reasonable time.  If this is not done, the Client is entitled to cancel its subscription with DSL and obtain a refund of any unused portion.  The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure with Datanest.

10.4  The Client warrants that it has relied upon its own skill and judgment as to the suitability of Datanest for its purposes and has not relied on any representation or upon any description, illustration or specification contained in any document, including the Documentation, or any publicly available material produced by DSL.  

11.  LIMITATION OF LIABILITY AND INDEMNITY

11.1  To the fullest extent permitted by law, DSL will not be liable to the Client (or any third party), for any consequential loss (whether indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data (including Client Data), goodwill or other economic advantage)) suffered as a result of the Client or anyone else using Datanest or any Third Party Software where such loss does not arise from any wilful, unlawful or negligent act or omission by DSL whether such liability arises in contract or in tort resulting from:

a.  the Client's use of, or inability to access and use Datanest;

b.  any failure or performance, error, omission, interruption, defect, delay in operation of Datanest (including as a result of third parties or Third Party Software);

c.  computer virus or communication line failure;

d.  theft, destruction, unauthorised access or alteration of Datanest or any of its contents including, without limitation, Client Data;

e.  any error or inaccuracy in:

i.  Client Data which the Client has uploaded to Datanest (including any misleading statements made and/or incorporated into any Client Data);

ii.  Third Party Information which is stored, accessed or used by the Client within Datanest; or 

iii.  any data, outputs, images, information, reports, results and other material generated by the Client's use of Datanest;

f.  the Client's use of any information (including Third Party Information) data, outputs, images, information, reports and other material accessed, analysed or generated by the Client's use of Datanest; 

g.  any unauthorised access to the Client's account or use of the Client's password; or 

h.  any cause or event reasonably beyond DSL's control.

11.2  Without limiting clause 11.1, in no event will DSL's aggregate liability to the Client arising under or in relation to these Terms and Conditions whether arising in contract, tort (including negligence), equity or otherwise shall not exceed, in aggregate, the total amount of any Fees paid by the Client for the relevant project in Datanest which has given rise to any such liability, or the remedies required of DSL under applicable law (including the Australian Consumer Law), whichever is lower.  This liability clause is subject to your rights under the Australian Consumer Law and nothing in these Terms and Conditions is intended to limit any rights you may have under the Competition and Consumer Act 2010 (Cth).

11.3  As a condition of the Client's access to and use of Datanest, the Client agrees to not breach these Terms and Conditions.  The Client agrees to indemnify and keep indemnified DSL against any claim, proceeding, damage, liability, loss, cost or expense (including legal costs on a solicitor and own client basis), whether arising in contract, tort (including for negligence) or otherwise arising out of or in connection with:

a.  a breach by the Client of its obligations under these Terms and Conditions; 

b.  any failure by the Client to ensure that steps are taken to prevent unauthorised use of Datanest; and

c.  any willful, unlawful or negligent act or omission of the Client in respect of its access and use of Datanest.

12. CHANGES TO THESE TERMS AND CONDITIONS

12.1 No variation to these Terms and Conditions shall be enforceable except if it is made in writing (including online tick box) and agreed by both parties.

13. TERMINATION

13.1 DSL may suspend or withdraw the Client's right to access and use Datanest at any time without prior notice if:

a.  the Client has breached these Terms and Conditions or have acted fraudulently;

b.  the Client dies, becomes bankrupt, or commits an act of bankruptcy or if a corporate, suffers and Insolvency Event;

c.  DSL withdraws Datanest as software product;

d.  DSL considers that it has other reasonable grounds to do so (in which case all reasonable efforts will be made to advise the Client of the circumstances of withdrawal or suspension); or

e.  DSL is complying with a court order or legislative requirement.

13.2  Upon termination of these Terms and Conditions, all rights and obligations of the parties immediately cease to have effect except that: 

a.  the termination of these Terms and Conditions is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination (including for the avoidance of doubt, the payment of any outstanding Fees); and 

b.  clauses which, by their nature, are intended to survive termination of these Terms and Conditions, survive termination.

14. GENERAL

14.1  If DSL does not exercise or enforce any right available to it under these Terms and Conditions, it does not constitute a waiver of those rights.

14.2  These Terms and Conditions constitute the entire agreement between the Client and DSL and supersede all prior agreements, arrangements, understandings and representations (whether oral or written) given by or made between DSL and the Client, relating to the subject matter of these Terms and Conditions.

14.3 The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by these Terms and Conditions or at law.

14.4  If any provision of these Terms and Conditions becomes or is held to be illegal, invalid or unenforceable in any respect, that provision shall be read down to the extent necessary to make it legal, valid and enforceable or, if it cannot be read down, be deemed severed from these Terms and Conditions. Neither such change shall affect the legality, validity and enforceability of the other provisions of these Terms and Conditions.

14.5 These Terms and Conditions are governed by the laws of New Zealand. When the Client accesses Datanest, the Client submits to the exclusive jurisdiction of the New Zealand courts.

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