Terms and Conditions
These terms and conditions (Terms) govern the use of the Harris Insights online platform including all associated software, services, software-as-a-service, website and webpages (including the Website), and all associated information, content and data (collectively Platform).
These Terms form the agreement between Harris Partners Consulting Pty Ltd ACN 600 238 300 (Nela) and you (Customer). By accessing and using the Platform, you agree to be bound by these Terms, and you agree to use the Platform only in accordance with these Terms.
ACL means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time;
Authorised Users means the employees or contractors of the Customer who are authorised to use and access the Platform, as nominated in writing by the Customer to Nela as at the Commencement Date, and as varied by notification in writing by the Customer to Nela subject to receipt of such documentation and fees by Nela which are required for such change, as listed on the Platform;
Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in Sydney, New South Wales;
Confidential Information means all confidential information of a party including, but not limited to:
(a) trade secrets and confidential know-how in relation to the Platform (both before and after the date of this agreement);
(b) all data bases, source codes, methodologies, manuals, artwork, advertising manuals, trade secrets and all financial, accounting, marketing and technical information, member and supplier information (including any information subject to a law relating to privacy), know-how, technology, operating procedures and other information, used by or relating to a party and its transactions and affairs;
(c) all notes and reports incorporating or derived from information referred to in paragraph (a) or (b); and
(d) all copies of the information, notes and reports referred to in paragraphs (a)-(c).
Customer means the person(s) that are identified as the Customer as at the Commencement Date;
Initial Fee means the initial fee payable by the Customer to Nela on the Commencement Date;
Fees means the fees payable by the Customer to Nela as listed on the Platform, being the fees to access and use the Platform, and any other fees for maintenance services or support services as listed on the Platform from time to time;
Licence Period means the period of one calendar month from the Commencement Date and each month thereafter until this agreement is terminated;
Services means the services provided by Nela to the Customer under this agreement including the provision of the licence under clause 3, and other services that are listed on the Platform as being provided to the Customer (noting that certain services will only be made available to the Customer if the Fee for that service is paid to Nela); and
The following rules of interpretation apply unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and conversely;
(c) if a word or phrase is defined, then its other grammatical forms have a corresponding meaning;
(d) a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;
(e) any contract (including this agreement), the Platform, or other instrument, includes any variation or replacement of it and as it may be assigned or novated;
(f) a reference to clause, or party is to a clause or party to this agreement; and
(g) if the day on which anything must be done is not a Business Day, then that thing must be done on the next following Business Day
(a) In consideration of the payment of the Fees, Harris agrees to provide the Customer with a non-exclusive non-transferable licence for Authorised Users to access and use the Platform during the Licence Period in accordance with these Terms.
(b) The Customer must:
(i) use, and only permit the Platform to be used by the Authorised Users, for the purpose of the Customer’s business and for no other purpose;
(ii) not use the Platform or permit the Platform to be used for any unlawful purpose;
(iii) ensure that the Platform is protected at all times from misuse, destruction or any forms of unauthorised use;
(iv) not allow the Platform to be used or accessed by any third party;
(v) ensure that all communications and information provided by the Customer or the Authorised Users using the Platform are not fraudulent or defamatory, or do not otherwise infringe any law; and
(vi) ensure that Harris’ use of any information uploaded onto the Platform will not infringe the rights of any third party;
unless expressly agreed by the parties in writing on any terms that Nela considers fit.
(c) Harris reserves the right to make modifications to the means by which access to the Platform is provided:
(i) as required by law; or
(ii) as determined by Nela in its sole discretion.
4 Licence Period
This agreement will commence on the Commencement Date and will roll over on a monthly basis until this agreement is terminated in accordance with these Terms.
(a) The Customer acknowledges and agrees that Nela may perform basic maintenance services as considered necessary in its sole discretion, to ensure the proper functioning of the Platform, including but not limited to:
(i) applying any updates to the Platform (noting that the availability of such updates may be subject to the payment of additional Fees); and
(ii) performing security and maintenance checks for evidence of security breaches, malfunctions and size limit warnings.
(b) The Customer acknowledges that it is solely responsible for the hardware and any software that it operates other than the Platform.
(c) Harris reserves the right to increase the Fees subject to providing not less than thirty (30) days notice of any price increase.
6 Uploading of data and use of Platform
(a) Each Authorised User is permitted to upload information or data up to a maximum upload limit in accordance with the service package selected by the Customer on the Commencement Date.
(b) Authorised Users may only upload data or information in formats which are supported by the Platform as determined by Nela from time to time.
(c) The Customer acknowledges and agrees that:
(i) Harris may publish benchmark information about the Customer or identify the Customer as a customer of Harris to the public;
(ii) Harris reserves the right to store all information and data uploaded onto the Platform by way of cloud server located outside Australia;
(iii) Harris implements security measures to protect data from security attacks but the Customer and Authorised Users ultimately use the Platform at their own risk; and
(d) The Customer agrees and acknowledges that Nela may access, use or publish information and data uploaded by Authorised Users onto the Platform for the purposes of providing the Services.
(e) The Customer warrants that it has secured the necessary licences and permissions from the owner, licensor or any other rights holder of any third party software used by the Customer to allow Nela, or any third party, to access, modify, adapt and otherwise use the Customer’s system or software in order to facilitate the use of the Platform by the Customer and Authorised Users.
(a) The Customer will pay the Fees and any other fees due and payable to Nela under these Terms in the manner specified by Harris as set out on the Platform.
(b) The Customer agrees that the Fees are payable in respect of the use of the Platform are on a per Authorised User basis.
(c) The Customer agrees to pay the Fee in respect of each Authorised User in advance, in respect of the total number of Authorised Users for each calendar month.
(d) If the Customer fails to pay any Fees that are due to be paid to Nela, Nela may withhold access to the Platform until such time that all outstanding amounts have been made in full.
(e) If any sum owed by the Customer to Harris is outstanding for more than thirty (30) days, Nela reserves the right to charge interest at a rate of 1.5% per annum on such overdue sum until payment is made in full.
(a) A party must not, and must ensure that its employees, agents and contractors do not, disclose any Confidential Information of the other party to any person except:
(i) as required to carry out its obligations under these Terms;
(ii) if required by law;
(iii) if the other party ceases to treat that information as being confidential; or
(iv) with the prior written consent of the other party.
(b) If this agreement is terminated for any reason, then a party must return or destroy any Confidential Information of the other party in its possession in any form, at the request of the other party except to the extent it is required to retain such a record for financial reporting purposes or under any law.
(c) The confidentiality obligations shall survive any expiry or termination of this agreement.
9 Intellectual property
Nothing in these Terms will be taken to constitute a transfer, assignment or grant of any ownership rights in any of the Intellectual Property Rights in the Platform, which will be retained by Harris.
10 Liability and indemnity
(a) To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from these Terms and otherwise in respect of goods or services from use of the Platform by the Customer or Authorised Users.
(b) If a supply under these Terms is a supply of goods or services to a consumer within the meaning of the ACL, nothing contained in these Terms excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the ACL, provided that, to the extent that the ACL permits Harris to limit its liability, then Harris’ liability will be limited to:
(i) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(ii) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
(c) To the fullest extent possible and subject to Nela’ liabilities and obligations under the ACL:
(i) Harris does not warrant the accuracy or completeness of the content provided through the Platform, and the Platform is provided on an ‘as is’ basis and on the condition that the Customer is responsible for assessing the accuracy and completeness of that content and the Customer relies on any such content at its own risk;
(ii) Harris will have no liability in relation to any loss or damage that the Customer or any Authorised User incurs arising from use of the Platform or linked third party websites or software (including damage to software or hardware, corruption of data, loss of data, any error, suspension or discontinuance of the Platform or transmissions by any user in contravention of these Terms); and
(iii) Harris does not warrant that access to the Platform will be uninterrupted or error-free, that defects will be corrected or that the Platform or the server that makes it available are free of viruses, bugs or malicious code or other forms of interference which may damage the Customer’s system.
(a) Either party may terminate this agreement immediately upon notice to the other party if:
(i) the other party is subject to an Insolvency Event;
(ii) the other party commits a material breach of this agreement and the breach:
(A) is not capable of being remedied; or
(B) is capable of being remedied and the defaulting party does not remedy it within 10 Business Days of being notified to do so.
(b) Harris may terminate this agreement immediately upon notice to the Customer if the Customer fails to pay any sum owed to Harris for more than thirty (30) days.
(c) Neither party shall be liable for any failure to perform any of its obligations under this agreement if the performance of such obligations has been interfered with, hindered, delayed or prevented by any circumstances which are not reasonably within the control of that party, provided, upon discovery, it promptly notifies the other party of such circumstances. If performance has been interfered with, hindered, delayed or prevented for a period in excess of sixty (60) days, the party whose performance is not affected may terminate this agreement by written notice to the other party.
(d) Upon termination of this agreement, the non-exclusive licence granted to the Customer will terminate with immediate effect and Harris will cease providing the Services to the Customer and all Authorised Users.
12 Assignment and sub-contracting
(a) The Customer must not sell, sub-licence, assign or in any other way transfer the Platform (or the licence to access and use the Platform) to any third party nor provide any of the output from the Platform to any third party.
(b) Nela may subcontract the performance of any or all of its obligations under this agreement.
(a) The Customer must not attempt to or actually interfere with the working of the Platform, gain unauthorised access to any part of the Platform, or otherwise breach or circumvent any security or authentication measures of the Platform or any other system, network or server connected to the Platform.
(b) The Customer must report any issue, inaccuracy, malfunction or other problem with the Platform, or any data collected by Harris to us as soon as practicable after such an issue, inaccuracy, malfunction or other problem becomes apparent.
(c) Harris may terminate the Customer’s access to the Platform at any time without notice, including without limitation for failure to comply with any agreed payment terms.
(d) Harris may vary these Terms at any time by publishing amended Terms on the Platform. The Customer will be deemed to have accepted any amended Terms if it continues to use the Platform after such amended Terms have been published.
(e) If any part of these Terms is held to be unenforceable, the remainder of these Terms will continue in full force.
(f) Any provision of these Terms by its nature intended to survive expiry or termination of the relevant agreements survives the expiry or termination of the relevant agreements.
(g) These Terms are governed by the laws in force in New South Wales. The Customer agrees to the jurisdiction of the courts of New South Wales.