Terms & Conditions
Green Brain is owned and operated by Consilium Technology PTY LTD of 1102 / 147 Pirie Street, Adelaide, South Australia, 5000.
You are anyone who uses our Website or buys any Advisory Service from us in any circumstances.
It is now agreed as follows:
means all of the advisory services available from our Website and/or advisory services provided by us to you, whether free or charged.
Includes a computer, tablet, any work station, mobile device, electronic application or receiving device.
Copy or Publish
with reference to a Licensed Product, means reproducing or publishing in whole or in part, using any means, in any medium. It includes breaking up, changing, cropping, modifying or any other change or use as part of some other created work.
means any user guides and/or other documentation which we have agreed to supply.
means any agreement or arrangement made after today whereby we agree that you may use any system, material or item of Intellectual Property owned or licensed by us.
Means and developments, improvements, enhancements, upgrades, new functionality, new releases, changes, alterations, innovations, extensions, advances, adaptations of existing works or additions of any nature made to the Software, Advisory Services, Work Product and, where relevant, Documentation (howsoever arising).
means intellectual property owned or licensed by us, of every sort, whether or not registered or registrable in any country, including intellectual property of all kinds coming into existence after today; and including, among others, patents, trade marks, unregistered marks, designs, copyright, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights. It includes in particular the Know-how, software, systems and methods we may use to perform the Work for you, the Work, Work Product, User Generated Information and Improvements.
means methods, procedures and ways of working and organising, which are not capable of protection as copyright.
means the licence granted by us to you in the terms of this agreement for use of the Licensed Product and/or Work Product.
means the sum or sums payable for the Licence, including a subscription, from time to time.
means any product, material or thing offered for licence by us on or through our Website, including the Software and a Subscription, whether or not bought by you. A reference to “Product” shall be a reference to all or part of a Licensed Product or to a Product changed by you in any way.
means any website or Advisory Service designed for electronic access by mobile or fixed devices which is owned or operated by Green Brain or any member of the Consilium Technology group of companies. It includes all of the hardware and software installations that enable our Website to function.
means Privacy Act (1988) (Cth) (as amended from time to time) and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.
means the software that constitutes the Licensed Product or which provides any electronic function which supports the use of the Licensed Product and/or the creation of the Work Product. It also includes all underlying source code and Improvements.
means the arrangement of granting access to you to access and use the Software for a continuing period of time in exchange for the pre-payment of the relevant Licence Fee
User Generated Information
means information arising from or as a result of the use of the Software and/or Advisory Services including but not limited to:
- configuration data – Technical data about how you configure and use the Software, such as technical data relating to the Devices used to access the Software and/or Advisory Services;
- feature usage data – data about how you use the Software, including how the features and functionality are used (or not used as the case may be) and any customisation, additional features or changes requested by you;
- performance data – data about the performance of the Software including response times for interfaces, links and functionality; and
- input Data – data and information entered, changed or incorporated into the Software by you.
means the work done by or on behalf of us to provide the Advisory Services you have ordered or requested.
means the output or results of the Work that we intend or do provide you to in respect of which a Licence Fee is payable.
Unless the context clearly requires otherwise, the interpretation of this agreement shall be subject to the matters listed below:
2.1 a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
2.2 a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.
2.3 a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.
2.4 in the context of permission, “may not” in connection with an action of yours, means “must not”.
2.5 except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person;
2.6 any agreement by either party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
2.7 a reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to.
2.8 in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.
2.9 these terms and conditions apply to all supply of Advisory Services, Work Product and Subscription services by us to you. They prevail over any terms proposed by you.
3. Entire Agreement
3.1 We represent, warrant and guarantee that we have the full right, power and authority to license and distribute the Work Product and Licensed Product, including all the images, photos and animations incorporated into the Work Product and/or Licensed Product and accompanying printed materials, if any.
3.2 If you use our Website in any way and make an order on behalf of another person you warrant that you have full power,capacity and authority to do so and you accept personal responsibility for every act or omission by you or that other person. If you are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement. If you don’t have the legal authority to bind, please ensure that an authorised person from your entity consents to and accepts these Terms.
3.3 You accept responsibility for compliance with the laws that might affect your right to use the Software, and you represents that you have or will comply with all such laws and procedures.
3.4 This agreement contains the entire agreement between us and supersedes all previous agreements and understandings between the parties.
3.5 Conditions, warranties or other terms implied by statute or common law in any country are excluded from this agreement to the extent permitted by law.
3.6 In entering into this contract you have not relied on any representation or information from any source except the definition and explanation of a Subscription and Advisory Services given on our Website.
4. Basis of Contract
4.1 Subject to these terms and conditions, we agree to complete the Work, provide a Subscription and/or to provide to you some or all of the Advisory Services described on our Website or agreed with you, at the prices we charge from time to time.
4.2 The contract between us comes into existence only when we write to you to confirm that we agree to provide to you the Advisory Service you want or, in the case of a Subscription, grant you access to the Software. Your payment does not create a contract. If we decline to provide an Advisory Service or Subscription service we shall return your money to you, including to your credit card or bank account.
4.3 We may not offer the Subscription and/or Advisory Services in all countries. We may refuse to provide Advisory Services if you live in a country we do not serve.
4.4 Some of our Advisory Services are now or may in future, be available to you only subject to additional terms. Those terms will be set out on our Website. You agree that if you choose to use any such Advisory Service, the relevant terms will become part of this agreement.
4.5 If we give you free access to a Advisory Service or feature on our Website which is normally a charged feature, and that Advisory Service or feature is usually subject to additional contractual terms, you agree that you will abide and be bound by those terms.
4.6 We may change this agreement and/or the way we provide a Subscription and/or Advisory Services, at any time. If we do:
4.6.1 the change will take effect when we post it on our Website.
4.6.2 you agree to be bound by any changes. If you do not agree to be bound by them, you should not use our Website, the Subscription or the Advisory Services.
4.7 Unless agreed otherwise, you do not become a client for the time when after completion of one piece of Work we start another. Each piece of Work is a new retainer which terminates when that Work is done. If we should give advice on the same subject at a later time, that advice constitutes a separate contract and does not retrospectively extend the first contract for our Advisory Services. In respect of a Subscription, you are a client for the period of time of the Subscription.
4.8 The price of any Advisory Service or Licence Fee (including for a Subscription) may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy that Advisory Service or Licensed Product.
4.9 There is no contract between us for any free service, information or Advisory Service, so you do not become a client by using any free service on our Website or a free Advisory Service and we are not liable to you in any way resulting from your use of any free service or Advisory Service.
4.10 You agree that you are bound by these terms (or the latest version of them) for all future contracts with us, whether ordered through our Website or in some other way.
5. Price and Payment
5.1 The Prices for Advisory Services and Subscription are exclusive of Goods and Services tax (GST). The Price for Advisory Services and a Subscription acquired by an Australian consumer shall include GST.
5.2 Charges for a Subscription are specified on our Website. The Charges for Advisory Services are fixed whenever it is reasonably possible for us to ascertain the price. When we do not provide fixed charges for an Advisory Service, we will charge by the hour. Our hourly rates will be provided to you, and estimates of charges will be provided wherever possible.
5.3 For details of our current charges, please refer to our Website at greenbrain.ag.
5.4 Unless otherwise stated, payment will be due prior to you receiving the Work Product or being granted access to the Licensed Product. If you purchase a Subscription, payment of the relevant fees will be annually in advance, unless otherwise specified on our Website, or agreed between us.
5.5 Payment may be made by credit card to our Website or by bank transfer, or by such other methods or means as stated on our Website.
5.6 If we do not receive payment within the stated or required period, we shall stop the Work, not provide the Work Product, remove access to the Licensed Product and/or cease the Subscription until you have paid all relevant fees, including made your payment up to date.
5.7 It is possible that the price may have increased from that posted on our Website. If that happens, we will not provide the Advisory Services or Subscription until you have confirmed that you wish to acquire the Advisory Services and/or Subscription at the new price.
5.8 Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Australian dollar will be borne by you.
5.9 The Licence Fee is included in the charges for the Advisory Services and the Subscription.
6. Grant of Licence
6.1 We may not offer the Licence in all countries. We may refuse or revoke a Licence and return your payment (if payment to us has been made by you) if you live in a country we do not serve. We may also limit the number of transactions you may send or receive through our Website.
6.2 You acknowledge that Green Brainowns all right, title and interest in and to the Work Product and Licensed Product and that you have no right to use it (or any of Green Brain’s intellectual property) beyond the express terms of this a
6.3 Unless otherwise agreed, the Licence for the Work Product shall be for a period of twelve (12) months from the date of us providing the Work Product to you.
6.4 The Licence to access the Licensed Product by way of Subscription shall be for the agreed period, renewable upon payment of the Renewal Fee.
6.5 If you agree that your Subscription shall be automatically renewed at the expiration of the agreed period, we shall charge you the Renewal Fee in accordance with the terms of this Agreement.
6.6 If any Renewal Fee is not made before the renewal date, we may treat this agreement as having been terminated with effect from the renewal date. If that happens, the effect shall be the same as if the agreement had terminated by expiry of time.
6.7 The Licence is non-exclusive, non-assignable, non-transferable (other than in accordance with the terms of this Agreement) and otherwise as limited by the terms of this agreement.
6.8 No express or implied licence of the Licensed Product, the Advisory Services or any other material or Work Product is granted to you other than the express Licence granted in this agreement.
6.9 If and whenever the parties agree to a Future Deal, the terms of this agreement shall apply so far as possible to that Future Deal as if a new version of this agreement had been made specifically for that Future Deal.
6.10 If any information you give to us is inaccurate at the time of provision and/or misleading (including by silence), the Licence may be automatically terminated by us, and no refund of any monies paid (including the Licence Fee) will be due to you.
6.11 Any publication or appearance of a Licensed Product or the Work Product (or part thereof) as authorised by this Agreement, must bear an attribution in the following terms “This information is created and/or compiled by Green Brain and reproduced with the permission of Green Brain.”
7. Restrictions on Use of Licensed Product & Work Product
You agree that you will not and will not permit a third party to:
7.1 use the Work Product and/or Licensed Product for any purpose or in any way except as specified in this Agreement and in accordance with any other requirements specified by us when you paid the Licence Fee. These restrictions may relate to limitations on use, territory, duration, or any other choice which defines the Licensed Product;
7.2 use a Licensed Product or Work Product in part or as a whole, to incorporate it in any intellectual property of yours;
7.3 use our Website or the Software in a manner that gives you or a third party access to mass downloads or bulk feeds of any Licensed Product;
7.4 separate the component parts of the Software for use on more than one Device;
7.5 reverse engineer, decompile, or disassemble the Software;
7.6 perform an action with the intent of introducing any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature into our Website or the Software;
7.7 defame, abuse, harass, stalk or threaten others;
7.8 Interfere with or disrupt our Website, the Software or the servers or networks providing the Licensed Products;
7.9 sub-license, rent out, lease, sell, commercially exploit or lend the Software, Licensed Product or Work Product;
7.10 use, access or otherwise disclose the Software except as specifically allowed in this agreement;
7.11 use, Copy or Publish a Licensed Product or the Work Product, except as specifically allowed in this agreement;
7.12 provide your login details or make available or cause to be made available or share your Subscription with any other person or third party;
7.13 represent or give the impression that you are the owner or originator of any Licensed Product or the Work Product; and/or
7.14 remove, obscure or alter any identification or reference number or other information which may be embedded in any file of a Licensed Product or Work Product.
8. Freedom to Transfer
8.1 You may not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any of your rights and obligations under this agreement without our prior written consent, except that you may assign and transfer all your rights and obligations under this agreement to any person to which you transfer all or the relevant part of your business, provided that the assignee undertakes in writing to us to be bound by your obligations under this agreement.
9. Renewal Payments for Subscription Service
9.1 At least 2 weeks before expiry of the period, for which you have paid a Licence Fee (if relevant), we shall send you a message to your last known email address to tell you that your Subscription is shortly to expire and to invite you to renew, or, in respect of automatic renewal, to inform you that your Subscription will shortly renew.
9.2 At any time before expiry of your Subscription, you may use our Website to access your personal information and cancel your Subscription..
9.3 If you have elected automatic renewal of your Subscription, unless you cancel the Subscription, at expiry of your Subscription we shall automatically take payment from your credit card or agreed form of payment of the sum specified on the notification message sent earlier and shall confirm the renewal of your Subscription for a further period by sending you an email message.
9.4 If you cancel your Subscription during the Subscription period, unless required by law, no refunds will be given for any unused portion of your Subscription.
10. U.S. Government End Users
Green Brain is a “commercial item” as that term is defined at 48 C.F.R. 2.101. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users buy a Licence to use Green Brain and any related Documentation or Advisory Service with only those rights set out in this Licence.
11. Provision of Advisory Services / Work Product
11.1 The Advisory Services are listed and described on our Website.
11.2 In order to provide the Advisory Services and/or Work Product we may need specific help from you, as follows:
11.2.1 The location, name, co-ordinates and/or address of the area in respect of which the Advisory Services / Work Product will be sought;
11.2.2 Specific details regarding the type of information, analysis and/or Advisory Services that you require;
11.2.3 Certain agronomy and/or horticultural details that may be known to you;
11.2.4 information and confirmation from you on any aspect of your business which is of a technical or specialist nature outside of our expertise.
11.2.5 Any other details, which we determine may be relevant to your request.
11.3 The provision of our Advisory Service and Work Product relies on the information you provide to us (as foreshadowed in 11.2). If you are unable to provide us with information we require for a period which extends the agreed timescale then we are entitled to payment for our services in any event.
11.4 Our Work Product and Advisory Services will be delivered by your download from our Website or via e-mail to the email address you provide, or by both, or in such other way as we agree.
11.5 If we are not able to provide the Work Product and/or your Advisory Services within 45 days of the date of your order, we shall notify you by e-mail to tell you the likely provision date.
11.6 Except as specified in 6.1, all monies paid by you to us are non-refundable and cancellation and/or termination of this agreement by you or us at any time for any reason will not entitle you to a refund of monies paid.
11.7 You may not share or allow others to use the Advisory Services, Subscription and/or Work Product in your name.
12. Security of Your Credit Card
12.1 We will take reasonable care to make our Website safe for you to use a credit card. Card payments are not processed through pages controlled by us. We use one or more online payment Advisory Service providers who will encrypt your card or bank account details in a secure environment. All purchases through them will be governed by their terms and conditions, which can be accessed through their website.
12.2 If you have asked us or our payment provider to remember your credit card details in readiness for your next purchase or subscription renewal, we will securely store your payment details. These details will be used only to process your automatic annual payments or other transactions which you have initiated.
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
13.1 your failure to comply with the law of any country;
13.2 your breach, or a breach by the person / entity for whom you were authorised to accept these Terms, of this agreement;
13.3 any act, neglect or default by any agent, employee, you or your customers;
13.4 a contractual claim arising from your use of the Licensed Products; and
13.5 a breach of our intellectual property rights.
14. Security of Our Website
If you violate our Website, or this agreement, we may take legal action against you.
You agree that you will not, and will not allow any other person to:
14.1 modify, copy, or cause damage or unintended effect to any portion of the our Website, or any software used within it;
14.2 link to our Website in any way that would cause the appearance or presentation of the site to be different from what would be seen by a user who accessed the site by typing the URL into a standard browser;
14.3 share any part of our Website, without express written consent;
14.4 collect or use any product listings, descriptions, or prices;
14.5 aggregate, copy or duplicate in any manner any of the content or information available from our Website, other than as permitted by this agreement or as is reasonably necessary for your use of our Advisory Services;
14.6 share with unauthorised third party any login credentials to our Website or a Subscription.
15. Representative Liaison
15.1 On your acceptance of these terms and conditions, you shall nominate a representative who will be authorised to make decisions relating to the Advisory Services, Subscription and/or Work Product you have ordered and who will be responsible for providing all information and Documentation reasonably required by us to enable completion of the Work. If a person is not nominated by you, it will be deemed to be the person who owns and/or uses the email address you provide on our Website.
16. Dissatisfaction with the Advisory Services
16.1 Our most important task is to ensure your absolute satisfaction. We will always strive to reach that target.
16.2 If for any reason you are not completely happy with our Advisory Services, just contact our liaison representative, the details of which can be found on our Website, and we will do our utmost to provide the support you need.
16.3 You now agree that you commit a breach of this contract if you seek repayment of money paid to us by asking your credit card provider to credit back a payment made to us, without attempting to seek resolution from us first. In that event, you agree that you will owe us first the sum charged to us by our payment Advisory Service provider and secondly a sum based on time spent at $100 per hour in dealing with your breach. You also agree that this provision is reasonable.
17. Privacy & Data Protection
17.1 We each shall comply with the Privacy Laws applicable to our performance of our respective obligations under this Agreement.
18.1 We are both aware that in the course of our Work for you we will each have access to and be entrusted with information in respect of the business and operation of the other, all of which information is or may be confidential.
18.2 We both now undertake for ourselves and for every employee or sub-contractor whose services we may use both during and after completion of the Work, that we will not divulge to any person or otherwise make use of (and will use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
18.3 For the purposes of your above undertaking, the information will be deemed to include all information (written or oral) concerning the Licensed Product and Software.
18.4 Each of us now undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such reasonable steps as will from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with these provisions.
18.5 This clause 18 survives termination or expiration of this agreement. Your duty of confidentiality extends for a period of ten (10) years from the date of termination or expiration of this agreement.
19. Intellectual Property
You agree that at all times you will:
19.1 not disclose to any person the method of working or the Intellectual Property involved in our Work for you;
19.2 not modify or create a derivative work based on any Licensed Product unless expressly permitted to do so under this Agreement. For example, the following are prohibited: (i) creating server-side modification of map tiles; (ii) stitching multiple static map images together to display a map that is larger regional or country view;; or (iii) tracing or copying the copyrightable elements of the Licensed Products or building outlines and creating a new work, such as a new mapping or informative dataset;
19.3 not cause or permit anything which may damage or endanger our title, including licence, to the Intellectual Property;
19.4 indemnify us for any loss or expense arising from your misuse of the Intellectual Property;
19.5 on the expiry or termination of this agreement or your Subscription, immediately stop using the Intellectual Property except as expressly authorised by us in writing;
19.6 not use any name or trade mark similar to or capable of being confused with any name or mark of ours;
19.7 so far as concerns the Software made accessible by us to you, you will not:
19.7.1 copy, or make any change to any part of its code;
19.7.2 use it in any way not anticipated by this agreement;
19.7.3 give access to it to any other person than you, in this agreement;
19.7.4 in any way provide any information about it to any other person or generally.
20. Disclaimers and Limitation of Liability
20.1 The law differs from one country to another. This paragraph applies so far as the applicable law allows.
20.2 All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph will be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
20.3 Our Website may include hyperlinks to other websites or content or resources. We have no control over any websites or resources that are provided by persons or entities other than us. You understand that we are not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on, or available from such websites or resources. We are not liable for any loss or damage you may incur as a result of the availability or your reliance on materials or information from such websites or resources.
20.4 Our Website, the Subscription and our Advisory Services are provided “as is”. We rely on information from third parties and, to the greatest extent possible under applicable laws, we make no representation or warranty that the Advisory Services, the Work, the Subscription or Work Product will be:
20.4.2 useful to you;
20.4.3 of satisfactory quality;
20.4.4 fit for a particular purpose;
20.4.5 available, timely or accessible, without interruption, or without error.
20.5 We make no representation or warranty that the Advisory Service, Subscription, Licensed Product and/or the Work Product will achieve the target, purpose or intended results.
20.6 We disclaim any obligation or liability to you arising directly or indirectly from information you take from our Website, the Software and/or Licensed Product.
20.7 Subject to clause 20.7, you agree that, in all circumstances, if we may become liable to you, the limit of our liability is the amount you have paid us in the immediate preceding 12 months period for the Advisory Services, Work Product or Subscription relating to the aforementioned liability.
20.8 Except in the case of death or personal injury, our total liability under this agreement, however it arises, will not exceed the sum of $500. This applies whether your case is based on contract, tort, negligence or any other basis in law.
20.9 We will not be liable to you for any loss or expense which is:
20.9.1 indirect or consequential loss; or
20.9.2 economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or we knew you might incur it.
20.10 This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
20.11 If you become aware of any breach of any term of this agreement by any person, please tell us by sending an email to us, the details of which are noted on our Website. We welcome your input but do not guarantee to agree with your view or judgment.
20.12 Nothing in this agreement will be construed as limiting or excluding our liability for death or personal injury caused by our negligence.
21.1 This agreement may be terminated:
21.2 when the Work Product has been delivered to you or otherwise completed (for non-subscription engagements);
21.3 when the Subscription comes to an end;
21.4 by you (in accordance with these terms and conditions) by giving us 4 weeks’ notice in writing;
21.5 immediately by us if you:
21.5.1 fail to pay any fees for Work Product and/or Advisory Services within 14 days of a demand by us for payment;
21.5.2 fail to renew a Subscription; or
21.5.3 breach (or threaten to breach) this agreement;
21.6immediately by either party if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).
21.7 Any termination of this agreement by this paragraph will be without prejudice to any other rights or remedies to which a party may be entitled.
21.8 The following clauses survive termination of this agreement: Clause 2 (Interpretation), Clause 3 (entire agreement), clause 7 (Restrictions on Use), clause 8 (Freedom to Transfer), clause 9.4 (renewal payments), clause 12 (security of your credit card), clause 13 (Indemnity), clause 16 (Dissatisfaction with the Advisory Services), clause 18 (confidentiality), clause 19 (IP) and clause 20 (Disclaimers and limitation of liability) and such definitions that are required to give effect to these clauses.
22. Miscellaneous Matters
22.1 You undertake to provide to us your current land address, e-mail address, telephone number as often as they are changed together with all information that we may require to enable us to fulfil our obligations under this contract.
22.2 If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it will be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it will be binding in that changed or reduced form. Subject to that, each provision will be interpreted as severable and will not in any way affect any other of these terms.
22.3 The rights and obligations of the parties set out in this agreement will pass to any permitted successor in title.
22.4 If you are in breach of any term of this agreement, we may:
22.4.1 provide all text and content relating to the claimed breach, including your name and email address and all correspondence between us to our respective advisers, and you now irrevocably give your consent to such disclosure.
22.4.2 terminate your account, Subscription and/or refuse access to our Website;
22.4.3 cancel any order for Advisory Services, at our discretion; and/or
22.4.4 issue a claim in any court.
22.5 Any obligation in this agreement intended to continue to have effect after termination or completion will so continue.
22.6 No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
22.7 When you visit our Website or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on our Website. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing.
22.8 Any communication to be served on either party by the other will be delivered by hand or sent by Australia post or recorded delivery. It will be deemed to have been delivered:
22.8.1 if delivered by hand: on the day of delivery; or
22.8.2 if sent by post to the correct address: within 72 hours of posting;
22.9 In the event of a dispute between the parties to this agreement, then you undertake to attempt to settle the dispute by engaging in good faith discussions with us in a process of mediation before commencing arbitration or litigation.
22.10 This agreement does not give any right to any third party.
22.11 Neither party will be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control.
22.12 The validity, construction and performance of this agreement shall be governed by the laws of the State of South Australia, Australia.
End User License Terms
1. Grant of License. Subject to your compliance with the terms and conditions of this Agreement, including, without limitation, payment of all applicable fees, Licensor grants to you a non-exclusive, non-transferable, limited license to allow your employees and/or contractors to use the Licensed Product solely for your own internal business purposes.
2. Restrictions. Except as expressly permitted in Section 1, you will not, and will not permit any user or third party to: (a) publish, transmit, reproduce, create derivatives of or otherwise utilize the Licensed Product in any form, format or media; (b) merge the Licensed Product with any other data, information or content; (c) reverse engineer or otherwise attempt to derive the algorithms, databases or data structures upon which the Licensed Product is based; (d) distribute, sublicense, rent, lease or loan the Licensed Product; (e) use the Licensed Product for the business needs of any third person or entity, including without limitation, providing any services to any third parties; (f) remove, bypass or circumvent any electronic or other forms of protection measure included on or with the Licensed Product; (g) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Licensed Product; or (h) otherwise use or access the Licensed Product or any derivatives for any purpose not expressly permitted under this Agreement, including, for commercial purposes, including, without limitation, redistribution, retransmission or publication in exchange for a fee or other consideration, advertising or for use in marketing and promotional materials. You acknowledge that you need to obtain a separate distribution license from Licensor in order to distribute or publish the Licensed Product or any derivative in any form not expressly permitted under Section 1.
3. The Licensed Product, and all worldwide intellectual property and proprietary rights therein and related thereto, including, without limitation, all patents, copyrights, trademarks, trade secrets, moral rights, sui generis rights and other right in databases, and all rights arising from or pertaining to the foregoing rights, are and will remain the exclusive property of Licensor and its licensors and suppliers. All rights in and to the Licensed Product not expressly granted to you are reserved by Licensor and its licensors and suppliers.
4. Audit. Upon request, you will provide assurances acceptable to Licensor that you are using the Licensed Product, including the satellite imagery included therein, consistently with the terms of this Agreement. Upon notice, Licensor or its representatives may inspect your records, accounts and books relating to the use of the Licensed Product to ensure that the Licensed Product is being used in accordance with this Agreement.
5. Term and Termination. This Agreement remains in full force until terminated by Licensor due to a breach by you of any provision of this Agreement. Upon termination of this Agreement, all rights granted to you hereunder will immediately cease and you will: (a) discontinue all use of the Licensed Product; (b) purge all copies of the Licensed Product or any portion thereof from all computer storage devices or medium on which you have placed or permitted others to place the Licensed Product; and (c) give Licensor a written certification that you have complied with all of your obligations hereunder.
6. Limited Warranty; Disclaimer. To the extent permitted by applicable law, all Product is provided “as is” without any representations or warranties of any kind and all warranties, whether express or implied, oral or written, arising by law or otherwise, are expressly disclaimed and excluded, including, without limitation all implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose.
7. Limitation of Liability. In no event will Licensor or its licensors and suppliers be liable for any incidental, consequential, special, exemplary, or indirect damages (including lost profits or lost data) arising from, or relating to, this agreement or the Product, even if Licensor or its licensors or suppliers have been advised of the possibility of such damages. Licensor and its licensors or suppliers’ total cumulative liability in connection with this Agreement and the Licensed Product, whether in contract or tort or otherwise, will not exceed the amount of Fees paid by you for the Licensed Product.
8. Export Control. Any export, re-export or retransfer of the Licensed Product is subject to U.S. export control, sanctions and embargo laws. Accordingly, you will comply with all applicable export control laws, rules and regulations, including, without limitation the U.S. International Traffic In Arms Regulations (ITAR) (22 C.F.R Parts 120-130, as amended) and the U.S. Export Administration Regulations (EAR)(15 C.F.R. Parts 730-774, as amended). You will also comply with all applicable economic sanctions and trade embargo laws, rules and regulations as promulgated by the U.S. Treasury Office of Foreign Assets Controls (OFAC) and the Bureau of Industry and Security (BIS). The export, sanctions and embargo laws prohibit you from selling, reselling, exporting, re-exporting, trading, or otherwise transferring U.S. products and services with certain countries, entities and persons.