HolonIQ USA Inc. Download PDF Terms of Service
HolonIQ Pty Ltd. Download PDF Terms of Service
INTRODUCTION
HolonIQ is a market intelligence platform that provides market insights and data. Use of HolonIQ is subject to these Terms of Service.
KEY DEFINITIONS
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
a. Account means a registered account with the Platform.
b. Account Plan means the different types of subscription plans available to the Customer for access to the Platform as updated by the Company from time-to-time.
c. Authorised User means any registered user of the Platform authorised to access the Customer’s Account by the Company.
d. Company means HolonIQ Pty Ltd ABN 11 625 077 652.
e. Customer means the individual or organisation to whom the Platform is licensed to under these Terms of Service (which if in doubt shall be the named Account holder).
f. Customer Data means all information, data, documents and other such materials entered into the Platform by a User or on behalf of a User by any party but does not include derivative data.
g. Fee means any fee charged by the Company for access to and use of the Platform.
h. Platform means the “HolonIQ” market intelligence platform accessible at the Site.
i. Platform Data means all information, written or visual, provided within the Platform or by the Company, including Third Party Data.
j. Research means any research, reports, papers, articles and other information displayed within the Platform from time-to-time.
k. Third Party Data means any information of a Third Party Data Source that is made available by the Company (including and especially via the Platform), including any Research.
l. Third Party Data Source means the publisher, provider, supplier or other originator of any Third Party Data provided by the Company (including and especially via the Platform).
m. User means any Customer or Authorised User.
1. AGREEMENT
1.1. The licence granted under these Terms of Service shall be ongoing until terminated in accordance with these Terms of Service and/or the Commercial Terms.
1.2. The User agrees:
- To use the Platform in accordance with these Terms of Service and the Commercial Terms; and
- If creating an Account, that it is authorised to establish, maintain and pay for the Account.
1.3 The Customer agrees:a. To pay the Fees in accordance with the pricing agreed in the Commercial Terms as and when they fall due; andb. That it is responsible for the conduct of each Authorised User it authorises, who each must agree to and comply with these Terms of Service.
1.4 Where there is a conflict between these Terms of Service and the Commercial Terms, the Commercial Terms shall prevail.
2 USING THE PLATFORM
2.1 General
a. To access and use the Platform:
- The Customer’s Account must be set up and registered; and
- Each User must register with the Platform, either as a Customer or as an Authorised User, as the case may be.
b. The Company has no liability to the Customer for any User that:
- Exports any data from the Platform;
- Shares any information contained within the Platform; and/or
- Accesses any Customer Data via the Platform.
c. The Platform may permit or deny the User an Account with the Platform in its absolute discretion, although the User may generally obtain an account by registering via the Platform and accepting these Terms of Service.
d. The Company makes no representation that the Customer will achieve particular results or benefits from using the Platform.
2.2 Authorised Users
a. The Customer, where an organisation, shall be entitled to select certain individuals to be an Authorised User under their Account, subject to any restriction on the number of users agreed between the parties in the Commercial Terms or otherwise in writing.
b. Upon written request of the Customer and provided any limitation on the number of included users is not exceeded, the Company will authorise the registration of the new Authorised User to access the Customer’s Account subject to:
- The Customer providing necessary personal details for the Authorised User as requested by the Company, including (without limitation) full name and email address; and
- The Authorised User registering with the Platform and accepting these Terms of Service.
c. For the avoidance of doubt, the Company manages Authorised Users on behalf of the Customer as instructed from time-to-time, including the appointment and removal of an Authorised User.
2.3 Features
Subject to the Commercial Terms and any limitations on the Customer’s Account Plan, the Company shall provide the User with access to and use of the features as made available within the Platform from time-to-time.
3. FEES
3.1 The Platform is a paid service and the Customer agrees to pay the Fees to the Company as agreed in writing from time-to-time.
3.2 Unless specified otherwise, any subscription for access to the Platform shall be paid upfront in full for each 12-month period, and any subscription renewals for an additional 12-month period shall be subject to the mutual agreement of the parties.
3.3 The Company may suspend the Customer’s Account should any Fees be outstanding to the Company at any time. This may, in time, result in termination of access to the Platform for all of a Customer’s Authorised Users.
3.4 The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer’s access to the Platform.
3.5 The Company reserves the right to introduce or change any Fees from time-to-time by giving the Customer written notice. Any new or changed Fees will apply at the end of Customer’s current billing cycle after the Customer has been given such notice.
3.6 If the Customer does not accept the introduction or change to any Fees, then it can simply terminate its Account.
3.7 No refunds on Fees are offered except where required under law or as agreed at the absolute discretion of the Company or as outlined in Clause 6.13.
3.8 The Customer agrees that the Company shall not be responsible or liable in any way for interruptions to the availability of the Platform or the loss of Customer Data in the event of suspension and/or termination of their Account pursuant to clause 3.
4. PLATFORM DATA
4.1 Where applicable, the Company grants the User a limited, revocable, worldwide licence to access and use Platform Data, via the Platform, for the duration, and on the terms, of this Agreement.
4.2 Platform Data is substantially compiled from proprietary data sources and Third Party Data Sources, and while reasonable care and internal verification steps are taken by the Company, to the fullest extent possible under law, the Company does not warrant the accuracy, completeness or currency of Platform Data, and the Company is not liable for the use of or reliance upon any Platform Data by the User.
4.3 Selected Platform Data will be available for direct download by the User via the Platform as determined by the Company, subject to any download restrictions agreed by the parties in the Commercial Terms or otherwise.
4.4 Unless agreed otherwise by the parties in writing, the following restrictions shall apply to the User with respect to the use of Platform Data:
- Not make Platform Data publicly available and only use it for internal informational purposes;
- Not copy, transmit, reproduce, perform, distribute, alter, transmit or create derivative works of any Platform Data or any portion of or excerpts from Platform Data in any manner not expressly permitted in these Terms of Service;
- Not use Platform Data in a manner that infringes Intellectual Property Rights (especially wrongly claiming ownership or Moral Rights of any part of Platform Data) and ensure that any citations are appropriately attributed; andd. Not use Platform Data in contravention of any applicable laws or regulations.
4.5 The use of Platform Data may be further increased or restricted under any Commercial Terms between the Customer and the Company, which shall apply to each Authorised User.
5. CUSTOMER DATA
5.1 The Company agrees to treat all Customer Data as Confidential Information under these Terms of Service.
5.2 The Company accepts no liability for the content of Customer Data.
5.3 The Customer is responsible for the accuracy, quality and legality of any content uploaded by their Authorised Users, and the User’s acquisition of it.
5.4 The Customer is liable for any intentionally or recklessly erroneous, corrupted or false data uploaded to the Platform and indemnifies the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with that data, including to other Users.
5.5 The Customer grants the Company an immediate, worldwide, royalty-free license to use and incorporate the Customer Data within the Platform, for the purposes of providing the Platform to the Customer, for the duration of this Agreement.
5.6 The Company shall not access, use, modify or otherwise deal with Customer Data except where required by compulsion of law or upon the User’s authority (such as to provide access to and support for the Platform).
5.7 The Company may suspend access to Customer Data that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.
5.8 The Company may delete Customer Data from its systems on termination of these Terms of Service.
6. GENERAL CONDITIONS
6.1 Licence
a. By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive, non-transferrable and revocable licence to access and use the Platform for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service and the Commercial Terms.
b. The Company may issue the licence to the User on further terms or limitations (including the volume of any downloads) as it sees fit.
c. The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the User.
6.2 Modification of Terms
a. The terms of these Terms of Service may be updated by the Company from time-to-time.
b. Where the Company modifies the terms, it will provide the User with written notice. The User may continue to use the Platform on previously agreed terms until the end of the Customer’s current billing cycle.
6.3 Software-as-a-Service
a. The User agrees and accepts that the Platform is:
- Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
- Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to the Platform is available to the User unless expressly agreed in writing.
b. As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform.
6.4 Support
a. The Company provides online support for the User as agreed between the parties from time-to-time.
b. The User should notify the Company of any difficulties or problems they may experience with the Platform as soon as practicable.
c. The Company shall endeavour to respond to all support requests within 2 Business Days.
d. The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.
6.5 Use & Availability
a. The User agrees that it shall only use the Platform for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
b. The User is solely responsible for the security of its username and password for access to the Platform. The User shall notify the Company as soon as it becomes aware of any unauthorised access to its Account.
c. The User agrees that the Company shall provide access to the Platform to the best of its abilities, however:
- Access to the Platform may be prevented by issues outside of its control; and
- The Company accepts no responsibility for ongoing access to the Platform.
6.6 Privacy
a. The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR with respect to personal information that it collects about the User and other individuals.
b. The Privacy Policy does not apply to how the Customer handles personal information. If necessary, under the Privacy Act and/or the GDPR, it is the Customer’s responsibility to meet the obligations of the Privacy Act and/or GDPR by implementing a privacy policy in accordance with law.
c. The Platform may use cookies (a small electronic file) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
d. The Company may use User Content and other information collected via the Platform for research, developmental, statistical and analytical purposes, subject to and in accordance with the Privacy Policy.
6.7 Data
a. Security. The Company takes the security of the Platform and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
b. Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards and the Privacy Policy. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
6.8 Intellectual Property
a. Trademarks.
- The Company has moral, registered and unregistered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
- Without the written consent of the Company, the User must not reference the Company and/or the Platform in any promotional material.
b. Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Platform, in particular those rights of a Third-Party Data Source.
c. The Platform. The User agrees and accepts that the Platform is the Intellectual Property of the Company and the User further warrants that by using the Platform the User will not:
- Copy the Platform, or Platform Data, or the services that it provides for the User’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.
d. Content.
- All content (excluding Customer Data) submitted to the Company, whether via the Platform or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Platform.
- Customer Data remains the Intellectual Property of the Customer.
6.9 Third-Party Dependencies
The User agrees and acknowledges that the Platform has third party dependencies which may affect its availability, including (without limitation) Third Party Data Sources, internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
6.10 Confidentiality
a. The Company agrees to keep all other Customer Data in the strictest confidence, and to the extent Customer Data is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
b. Each party acknowledges and agrees that:
- The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
- It owes an obligation of confidence to the Discloser concerning the Confidential Information;
- It must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
- All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
- Any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
c. A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
- Any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
- Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
- Any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
d. The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
- Any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
- Any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
6.11 Promotion
Unless the Customer expressly withdraws its consent by written notice to the Company, the Customer consents to the Company using the Customer’s name and/or logos in any list of customers used by the Company for promotional purposes.
6.12 Liability & Indemnity
a. The User agrees that it uses the Platform at its own risk.
b. The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
c. The Customer agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with their Authorised User’s use of or conduct in connection with the Platform, including any breach by the User of these Terms, whether or not such use was authorised by the Customer.
d. In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use the Platform, and in particular any decisions made in reliance on Platform Data and especially investments in a corporation, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
e. Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
6.13 Termination
a. Either party may terminate these Terms of Service by giving the other party no less than 3 months’ written notice. Notice shall be deemed to have been provided by the Customer where the Customer cancels their Account and/or subscription from within the Platform.
b. Either party may terminate these Terms of Service by giving the other party no less than 10 Business Days’ notice where:
- The other party has been notified in writing of a breach and has not remedied that breach within 20 Business Days;
- The other party commits a breach which is incapable of remedy; and/or
- The other party repetitiously, wilfully or recklessly commits a breach.
c. Where termination is effected under this clause 6.13 then the Customer shall be relieved of the obligation to pay any further Fees and access to the Platform shall cease at the end of the Customer’s billing cycle active at the expiry of that notice period.
d. For clarity, no refunds will be payable to the Customer for the remainder of any subscription period from the date of termination, unless either the Customer terminates for cause pursuant to clause (b) above or the Company terminates for convenience pursuant to clause (a) above, in which case the Customer shall be entitled to a pro-rata refund for Fees paid in advance for the period following the effective date of termination until the end of the Customer’s current billing cycle.
e. Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.
6.14 Dispute Resolution
a. If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
b. Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
c. Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
d. Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
e. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.15 Electronic Communication, Amendment & Assignment
a. The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
b. The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the User of a change of details from time-to-time.
c. The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
d. A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
e. Notices must be sent to the parties’ most recent known contact details.
f. The User may not assign or otherwise create an interest in these Terms of Service without prior written consent of the Company (which shall not be unreasonably withheld).
g. The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
6.16 Definitions.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
a. ABN means Australian Business Number.
b. Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.
c. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in New South Wales, Australia.
d. Commercial Terms means any additional terms agreed between the Company and the Customer with respect to the Customer’s licence for the use of the Platform, including with respect to Fees payable and Account Plan subscribed for, and includes any proposal or quotation accepted by the Customer.
e. Confidential Information means any written or verbal information that:
- Any information deemed as confidential under this Agreement;
- A party informs the other party that it considers it confidential and/or proprietary;
- A party would reasonably consider to be confidential in the circumstances; and
- Is personal information within the meaning of the Privacy Act and GDPR.
but does not include information that a party can establish:
- Was in the public domain at the time it was given to that party;
- Became part of the public domain, without that party’s involvement in any way, after being given to the party;
- Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
- Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
f. GDPR means the EU General Data Protection Regulation 2016/679.
g. GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
h. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
i. Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
j. Moral Rights means:i. Moral Rights pursuant to the Copyright Act 1968 (Cth); orii. Any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
k. Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at https://www.holoniq.com/privacy-policy/.
l. Privacy Act means the Privacy Act 1989 (Cth).
m. Site means the URL of the Company’s website providing Customer login access to the Platform.
n. Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.17 General
a. Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
b. Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with, the terms of any other agreement between the Company and the User, any Commercial Terms, or any special conditions made under these Terms of Service, as relevant, the terms of those other agreements or special conditions shall prevail.
c. Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
d. Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
e. Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
f. Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
g. Governing Law. These Terms of Service are governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
h. Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
i. Interpretation. The following rules apply unless the context requires otherwise:
- Headings are only for convenience and do not affect interpretation.
- The singular includes the plural and the opposite also applies.
- If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
- A reference to a clause refers to clauses in these Terms of Service.
- A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
- Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
- A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
- A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
- A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
END OF TERMS OF SERVICE