Terms & Conditions

Services Terms & Conditions

PropertyIQ Pty Ltd – Version 2.0

Updated 1 July 2022. Last modified 28 January 2019.

1. DEFINITIONS AND INTERPRETATIONS

1.1 In this Agreement unless the context otherwise requires, the following words will have the meaning set out hereunder: 

  • Account Administrator means the authorised representative of the Customer specified in the Order Form (or subsequently notified to PIQ in writing), who has authority to represent the Customer in accordance with clause 1. 

  • Agreement has the meaning given at clause 2. 

  • API means an application programming interface provided by PIQ to enable the Customer to access the Services.

  • Business Hours means between 8:00am and 5:00pm Monday to Friday, excluding public holidays at the place of work of the specific PIQ consultant providing the Help Desk Support.

  • Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered by or on behalf of PIQ to the Customer before, on or after the date of this Agreement, relating to the Services, or the business, technology or other affairs of PIQ, including any Intellectual Property Rights, data (including PIQ Data), programs or algorithms, but does not include the Excluded Information (to the extent relevant).

  • Consequential Loss means:

    • (a) any loss of revenue, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss or damage to or corruption of data, loss of goodwill, loss of reputation, or loss in connection with any claims by an end client or customer;

    • (b) any special, consequential or indirect loss; or

    • (c) any loss that does not flow naturally, that is, according to the usual course of things, from the relevant breach, act or omission, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise. 

  • Customer means the party specified as the customer in the relevant Order Form.

  • Customer Data means information and data which is entered into the Services by or on behalf of the Customer or otherwise provided to PIQ or its Related Bodies Corporate by the Customer in the usual course of business, but in each case does not include PIQ Data, Managed Property Data, or Personal Information provided to PIQ in accordance with the Portal User Agreement. 

  • Data Migration Services means, if applicable, the services including migration of the Customer’s data into the hosted PIQ environment and related services provided by PIQ as described in a Data Migration Services Order Form.

  • Data Migration Fees means the fees set out in the applicable Data Migration Services Order Form.

  • Effective Date means the “Agreement Start Date” as set out in the applicable Order Form.

  • Excluded Information means:

    • (a) the Customer Data;

    • (b) the Managed Property Data; and

    • (c) any Confidential Information which:

      • (i) is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed to PIQ;

      • (ii) the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by PIQ (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or

      • (iii) the Customer acquires from a source other than PIQ where such source is entitled to disclose it.

  • Fees means the Transition Fee, Service Subscription Fees, Transactional Service Charges, Data Migration Fees and any other fees set out in the Order Form to which those fees relate.

  • Force Majeure Event has the meaning given in clause 7.

  • General Property Data means factual information relating to:

    • (a) the physical characteristics of a real property including, but not limited to, internal features such as living area, number of bedrooms, bathrooms and floor levels, number of car spaces and type; external features such as construction type and materials, roof type, land size, property aspect, land and yard features, property improvements, such as pool, and year built or renovated;

    • (b) lot and plan information, title reference or other legal description for a property, land and building area, zoning information and mapping information; and

    • (c) suburb location of a real property, including, but not limited to, suburb location and suburb ratings. 

  • GST has the meaning given to that term under A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or updated from time to time. 

  • Help Desk Support means responding to Customers who have questions regarding the configuration and functionality of any software used in relation to the Services, where such questions are determined by PIQ in its sole discretion as being within the scope of the Help Desk Support.

  • Initial Term has the meaning set forth in clause 1. 

  • Insolvent means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, enters into bankruptcy, or is subject to any arrangement to protect itself from creditors or dissolves. 

  • Intellectual Property Rights means all industrial and intellectual property rights throughout the world, including current and future registered and unregistered rights in respect of trade marks, copyright, source-code, databases, circuit layouts, designs, patents, inventions and discoveries, trade secrets, know-how and confidential information and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation. 

  • Law means common law, principles of equity, and laws made by Parliament (including State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them). 

  • Loss means any and all liabilities, losses, damages, outgoings, costs and expenses (including legal costs assessed on a solicitor-client basis). 

  • Managed Property Data means data and information which is managed by the Customer relating to:

    • (a) an end-customer of the Customer (such as a strata corporation); or

    • (b) a lot owner or tenant whose property lot is being managed or administered (or both) through the Services, and where relevant may include the General Property Data.

  • Modifications means any modifications, upgrades or developments of any Services provided by PIQ. 

  • Offboarding Guide means a written guide provided by PIQ to the Customer describing the recommended steps for the Customer to follow when being offboarded from PIQ.

  • Order Form means an order form executed by or on behalf of the Customer which specifies the Services that the Customer has requested. 

  • Party means PIQ or the Customer and Parties means PIQ and the Customer. 

  • Permitted Purpose means the use of the Services by the Customer to operate, manage and support strata communities and/or a strata management businesses. 

  • Personal Information has the meaning given to that term in the Privacy Act. 

  • Personnel means an employee, contractor, authorised representative or agent of a Party.

  • PIQ means PropertyIQ Pty Limited (ACN 603 672 975) 

  • PIQ Data means any information and data made available by PIQ whether via the Services or otherwise, for use by the Customer or otherwise generated by the Services, including metadata, analytic and insight data, market share analyses, index results, alerts, reports and any other derived data resulting from the use of the Services by the Customer (and its end-customers) or other PIQ customers.

  • Portal User Agreement means the agreement between PIQ and an end user of the Customer governing that end user’s access to the PIQ portal.

  • Privacy Act means the Privacy Act 1988 (Cth) as amended or updated from time to time. 

  • Privacy Policy means the Macquarie Group privacy policy as updated from time to time and located at macquarie.com.au/privacy-and-cookies.html.

  • Renewal Term has the meaning set out in clause 2.

  • Related Body Corporate has the meaning given to that term under the Corporations Act 2001(Cth) as amended or updated from time to time.

  • Service Subscription Fees means the subscription fees set out in the applicable Order Form.

  • Services means those subscription services listed as such in the applicable Order Form.

  • System Requirements means the system requirements published by PIQ at https://www.propertyiq.com.au/system-requirements/, as updated from time to time, which sets out the hardware, operating system and software requirements for the effective utilisation of the Services.

  • Term has the meaning given in clause 2.

  • Territory means Australia and New Zealand. 

  • Third Party Platform Provider means a third party vendor which provides a strata-related service to the Customer and who has executed a connectivity agreement with PIQ.

  • Transactional Service Charges means the transactional charges set out in the applicable Order Form. 

  • Transition Fee means the one-time fee payable for transitioning the Customer onto the Services.

  • User means each of the Customer’s Personnel who access the Services using credentials assigned by PIQ.

1.2 The headings in this Agreement are for convenience of reference only and will not affect the interpretation hereof.

1.3 The words “include” and “including” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

1.4 Words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders. 

2. AGREEMENT

2.1 These terms and conditions are incorporated into, and form part of, each Order Form between PIQ and the Customer (Agreement).

3. DURATION

3.1 This Agreement will commence on the Effective Date and will continue for the initial term specified on the Order Form or, if no term is specified, 1 year (the Initial Term).

3.2 After the Initial Term, unless otherwise specified in the applicable Order Form, this Agreement will automatically renew for subsequent periods of 30 days (each, a Renewal Term), unless a Party gives the other Party written notice of its intent to not renew at least thirty (30) days prior to the end of then-current term. The Initial Term and each Renewal Term comprise the “Term”.

4. ACCESS AND USE RESTRICTIONS

4.1 Subject to the terms of this Agreement and the Customer’s performance of its obligations, PIQ hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable limited right during the Term, to permit its Users to access and use the Services and the PIQ Data in the Territory, within the Customer’s enterprise only and solely for the Customer’s internal business purposes in the Territory.

4.2 The Parties agree that the right of access and use granted under this Agreement will cease immediately upon the termination of this Agreement.

4.3 The Customer must only allow or permit its Users to use the Services and the PIQ Data (and other Confidential Information) if they are employed or otherwise engaged by the Customer or the Customer has first obtained the express prior written consent of PIQ to do so. The Customer agrees that it will not permit or allow any other person to access or use the Services or the PIQ Data (or other Confidential Information).

4.4 The Customer acknowledges and agrees to use, and ensure that its Users use, the Services and any PIQ Data solely for the Permitted Purpose and in accordance with this Agreement, the Portal User Agreement and all Laws.

4.5 Except as expressly permitted under this Agreement or to the extent permitted by Law, the Customer and its Users must not, or permit any person or entity to:

  • (a) decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the Services, including any source code, object code, algorithms, methods or techniques used or embodied therein;
  • (b) data mine, scrape, crawl, harvest or use any process or processes that send automated queries to the Services;
  • (c) reproduce, copy, frame, mirror, republish, download, display, transmit, all or any part of the Services or any PIQ Data in any way other than in accordance with this Agreement;
  • (d) modify, adapt or incorporate all or any part of the Services or PIQ Data into any other material, product, service, system or database or create any derivative works based upon the Services or the PIQ Data without PIQ’s prior written consent;
  • (e) resell, distribute, market, lease, assign, sublicense, transfer or otherwise commercially exploit any right, title or interest in all or any part of the Services or any PIQ Data to any third party, or use the Services or any PIQ Data on behalf of or for the benefit of any third party other than in accordance with this Agreement;
  • (f) use the Services in a manner which interferes with the privacy of an individual or otherwise breaches the Privacy Act as more specifically set out in clause 12;
  • (g) remove or alter any registered or unregistered trade mark, logo, copyright notice or other proprietary notice appearing on or in the Services or any PIQ Data;
  • (h) use the Services to gain unauthorised access to or interfere with any online resources or systems of any third party, including by any form of hacking;
  • (i) circumvent any security measures;
  • (j) use the Services in any manner that is likely to result in PIQ’s systems, or systems of any other person, being affected by any virus, worm, Trojan, disabling code, bomb, back-door or similar computer program that is designed to, or may in the ordinary course of its operation, prevent, inhibit or impair the performance of the Services;
  • (k) use the Services in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space, infrastructure, security systems or other resources of PIQ or its third-party service providers or other customers;
  • (l) use the Services in a way the User knows or ought to reasonably know, infringes any third party’s Intellectual Property Rights;
  • (m) use the Services for the purposes of accessing, storing, distributing, providing (including to PIQ) or otherwise transmitting any information, data, material or content that is unlawful, misleading, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  • (n) use the Services in any way that may violate any Laws, or cause PIQ to be in violation of any Laws; or
  • (o) use the Services in any other manner that is unacceptable to PIQ.

4.6 Where the Customer wishes to grant a Third Party Platform Provider access to its Customer Data via PIQ’s API(s), the Customer acknowledges that the Third Party Platform Provider’s access to and use of the PIQ API(s) will be governed by a separate agreement between the Third Party Platform Provider and PIQ.

5. SUSPENSION

5.1 Without limitation to clauses 18 or 5.2, PIQ may, at its sole discretion, immediately limit or suspend the Customer’s access to the Services and prevent further access without notice:

  • (a) if there is an actual or suspected breach of clause 4;
  • (b) if the Customer has not paid the Fees in accordance with this Agreement within 30 days of PIQ providing written notice to the Customer to remind the Customer to pay the Fees;
  • (c) in response to suspicious or unusual activity relating to the Services or a Customer account;
  • (d) in order to comply with applicable Laws or directions from a regulatory authority;
  • (e) if emergency maintenance is required to ensure the security or performance of the Services; or
  • (f) if PIQ receives a notice from a third party with a legitimate interest to be protected (including any regulatory authority) requiring PIQ to cease providing the Services or remove any content being made available through the Services.

5.2 PIQ may, at its sole discretion, immediately limit or suspend the Customer’s access to the Services and prevent further access upon reasonable prior written notice to the Customer due to scheduled maintenance in respect of the Services.

5.3 For security, confidentiality and privacy reasons, PIQ is not obligated to provide any details of any investigation or any action undertaken by it in accordance with this clause 5.

5.4 PIQ will restore access to the Services as soon as reasonably possible after the reason for the suspension has been addressed or removed.

6. SYSTEM REQUIREMENTS AND SUPPORT

6.1 The Customer acknowledges and agrees that it has read, understood and agrees to comply with the System Requirements, as updated from time to time.

6.2 Subject to the terms of this Agreement and the Customer’s performance of its obligations, PIQ will provide the Customer with Help Desk Support for the Services during Business Hours to be advised by PIQ from time to time.

6.3 The Customer acknowledges that PIQ does not provide any accounting, financial, legal or tax advice regarding the Services as part of the Help Desk Support and that the Customer is responsible for obtaining any such advice at its own cost.

6.4 The Parties agree that nothing in this Agreement obliges PIQ to provide Help Desk Support or any other services to any third party, including any of the Customer’s end users, customers, clients or suppliers.   

6.5 Any further training or consulting required by the Customer, or any additional support services, will incur additional fees as agreed under a separate Order Form which incorporates these terms.  

7. SERVICE ACCESS AND CHANGES

7.1 The Customer represents and warrants on an ongoing basis that the Account Administrator is an authorised representative of the Customer and has actual authority to bind the Customer and act on behalf of the Customer:

  • (a) to establish, re-set, remove, add and maintain any identification username and passwords for the Users; and
  • (b) in relation to any variations, extension or amendments to this Agreement.

7.2 The Customer acknowledges and agrees that, in the event that PIQ provides the Customer with any account, identification numbers and/or passwords, it:

  • (a) bears sole responsibility for protecting all identification numbers and passwords, and account access;
  • (b) will not provide such account access, identification numbers and passwords to any third party;
  • (c) will remain fully responsible and liable for any authorised or unauthorised use of any account, identification numbers and passwords; and
  • (d) will, for security purposes, change such identification and passwords periodically or as directed by PIQ from time to time.

7.3 PIQ reserves the right to change, refine or withdraw the features and functionality of any Services (including under clause 15.3) without notice. If such a change materially adversely affects the Customer, such that the basic functionality of the Services is altered so that its use in connection with the Permitted Purpose may no longer be reasonable or valid, then PIQ will use commercially reasonable efforts to notify the Customer in advance (but the Customer acknowledges that in some circumstances, notice may be provided after the fact). Following the Customer’s receipt of written notice from PIQ, the Parties will have 30 days to discuss in good faith the proposed change(s) and its impact on the Customer’s use of the Services. If:

  • (a) at the conclusion of such 30-day period, the Parties agree that the Customer’s continued use of the Services in connection with the Permitted Purpose is unreasonable or invalid; or
  • (b) the change(s) results in a material breach of the warranty in clause 13.1(a) and PIQ is unable to rectify the breach within a reasonable time, the Customer may terminate this Agreement upon written notice to PIQ and, within 30 days from the termination date, PIQ will refund to the Customer any pre-paid fees for Services that would have, but for termination, been provided after the termination date.

7.4 The Customer acknowledges that PIQ will not be obliged to provide access to any Services to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.

7.5 The Customer will be fully responsible and liable for any act or omission of any of its Users. 

8. FEES AND PAYMENT

8.1 The Customer will pay PIQ all the Fees monthly in arrears, in accordance with the Order Form and this clause 8. Subject to this Agreement and any applicable Laws or other rights the Customer may have, all such Fees, when paid or payable, are non-refundable, even if the Customer stops using the Services for any reason.

8.2 PIQ shall issue the Customer with an invoice for any Fees payable and the Customer shall pay any such invoice in full within 30 days of receipt of the relevant invoice.

8.3 Except as expressly provided for in the Order Form, all Fees are GST exclusive. If provision of the Services under this Agreement is subject to GST, the Customer must pay to PIQ an additional amount equal to the relevant fee multiplied by the applicable GST rate. Such additional amount is payable at the same time as the related Fee.

8.4 Other than the Service Subscription Fees during the Initial Term, PIQ may, at its discretion, increase the Fees by providing the Customer with at least 30 days’ written notice.

8.5 Any duly invoiced amounts not paid to PIQ when due will be subject to interest equal to 3% per annum or the highest rate permitted by Law (whichever is lower), calculated on a daily basis. 

9. CONFIDENTIALITY

9.1 No Confidential Information may be disclosed by the Customer to any person or entity except:

  • (a) to Personnel of the Customer who have the need to know such Confidential Information in order to exercise rights or perform the Customer’s obligations under this Agreement and:
    • (i) are aware of the confidentiality obligations imposed in this clause 9; and
    • (ii) have entered into written confidentiality agreements with the Customer which require such Personnel to comply with confidentiality obligations no less restrictive than those set forth in this clause 9;
  • (b) to the extent the Customer is required to do so by Law;
  • (c) to the extent the Customer is required to do so in connection with legal proceedings relating to this Agreement; or
  • (d) to its accountants, auditors, financial advisers or legal advisers on a confidential basis. 

9.2 The Customer must not use Confidential Information except for the purpose of exercising its rights or performing its obligations under this Agreement.

9.3 Clauses 9.1 and 9.2 do not apply to Excluded Information.

9.4 The Customer will take any action that is necessary to prevent or remedy any breach of the Customer’s confidentiality obligations or other unauthorised disclosure of Confidential Information.

9.5 The Customer acknowledges that, due to the unique nature of the Confidential Information, any breach by the Customer of its obligations under this clause 9 would result in irreparable harm to PIQ and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, PIQ and its service providers will be entitled to seek injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies PIQ and its service providers may have at Law.

9.6 The Customer will not remove, alter, obscure or otherwise modify any trade mark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.

9.7 The Customer may not make press or other announcements or releases relating to this Agreement without PIQ’s prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by Law or by a stock exchange with which the Customer is listed.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 The Customer acknowledges and agrees that:

  • (a) as between PIQ and the Customer, PIQ or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Services and the PIQ Data, including any and all creations, inventions and Intellectual Property Rights contained or embodied within the Services and the PIQ Data;
  • (b) it acquires no rights in or to the Services or the PIQ Data provided pursuant to this Agreement except for the limited rights set out in clause 4;
  • (c) it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or PIQ’s and its service providers’ ownership of the Services or the PIQ Data, or the creations, inventions and Intellectual Property Rights contained or embodied within the Services and the PIQ Data; and
  • (d) all other uses of the Services and the PIQ Data not expressly permitted in this Agreement are strictly prohibited.

11. DATA

11.1 The PIQ Data remains the property of PIQ at all times.

11.2 The Customer Data remains the property of the Customer at all times. It is the Customer’s sole responsibility to ensure that the Customer Data and Managed Property Data entered into the Services, by or on behalf of the Customer, is complete and accurate and remains so during the Term.

11.3 As between the Parties, neither Party owns the Managed Property Data. However:

  • (a) to the extent that any data (including but not limited to Managed Property Data) is entered into the Services, then as between the Parties, the Customer is responsible for ensuring that data is complete and accurate and remains so during the Term; and
  • (b) the Customer acknowledges that PIQ may, where relevant, seek consent from the person or entity to which the Managed Property Data relates to use certain data submitted by them for certain purposes and that PIQ may seek such consent without the prior approval of Customer.

11.4 During the Term, the Customer grants to PIQ and its Related Bodies Corporate a licence to access and use the Customer Data to:

  • (a) provide the Services and otherwise perform its obligations under this Agreement;
  • (b) generate usage records and reports based on the Customer (and its end-customers’) use of the Services;
  • (c) conduct research about PIQ’s products and services, the property market or product trends;
  • (d) develop PIQ’s products and services;
  • (e) prevent or investigate any fraud or crime (or a suspected fraud or crime);
  • (f) audit and monitor the use of the Services; and
  • (g) undertake data analysis and other related activities.

11.5 Any PIQ Data generated by or resulting from any activities undertaken by or on behalf of PIQ under clause 11.4 will be owned by PIQ and will constitute Confidential Information. For clarity, PIQ may use such PIQ Data for any purpose whatsoever at PIQ’s absolute discretion, including but not limited to further data analysis and research, marketing and commercialisation.

11.6 The Customer must ensure that it has all licences, consents and any other approvals necessary to disclose the Customer Data and any Managed Property Data to PIQ, and to otherwise deal with that data and to grant the licence to PIQ under clause 11.4.

11.7 If, during the Term, the Customer transfers any of its end users to a different strata management software provider, the Customer will:

  • (a) immediately notify PIQ in writing (such notice to also include the date of transfer); and
  • (b) upon the date of transfer, delete all Customer Data and Managed Property Data entered into the Services by or on behalf of that end users.

11.8 At the conclusion of the Term, PIQ will provide the Customer with an Offboarding Guide. Within 30 days of receipt of the Offboarding Guide, the Customer must confirm to PIQ in writing that it has exported all relevant Customer Data and Managed Property Data or, where that is not technologically possible, has downloaded all relevant PDF reports in accordance with the Offboarding Guide.

11.9 PIQ will:

  • (a) retain the Customer Data in PIQ’s possession or control for 90 days after the expiry or termination of this Agreement; and
  • (b) at its discretion, delete or destroy the Customer Data in PIQ’s possession or control within 90 days of expiry of the period referred to in paragraph (a).

11.10 For clarity, in the event of any conflict or inconsistency between the following documents in relation to the Managed Property Data:

  • (a) the Portal User Agreement;
  • (b) the Privacy Policy;
  • (c) these terms and conditions; and
  • (d) the applicable Order Form, the document listed higher will prevail to the extent required to resolve the conflict or inconsistency.

12. PRIVACY 

12.1 To the extent that the Customer uses the Services to collect, use, handle, store or disclose Personal Information, the Customer must:

  • (a) comply with the Privacy Act;
  • (b) ensure that it has obtained all necessary consents in relation to that Personal Information;
  • (c) only use Personal Information for the purposes for which it was collected;
  • (d) take all reasonable steps to ensure that the Customer does not act in a way that contravenes the Privacy Act, or otherwise causes PIQ to contravene the Privacy Act;
  • (e) notify PIQ immediately (by email to privacy@macquarie.com) of any privacy complaints or events which may cause the Privacy Act to be breached, and assist PIQ or its Related Bodies Corporate in dealing with any complaints or potential breaches, including proving access to relevant information; and
  • (f) indemnify PIQ, and keep PIQ indemnified in respect of any Loss or claim incurred by PIQ resulting from a breach by the Customer or its Personnel, of the Privacy Act or Spam Act 2003 (Cth) (Spam Act), including a breach by the Customer or any third party of any telephone number disclosed by PIQ to the Customer that appears on the Do Not Call Register under the Spam Act.

12.2 PIQ adheres to the Macquarie Group Privacy Policy in respect of Personal Information.  The Customer should read the Privacy Policy and the Customer will be taken to have accepted that policy when it accepts this Agreement. 

12.3 For clarity, to the extent that end-customers of the Customer submit data to the Service directly, that Managed Property Data will be collected, used, stored and disclosed by PIQ in accordance with the Privacy Policy and any other applicable agreement between PIQ and that person, including the Portal User Agreement.

13. LIMITED WARRANTY 

13.1 PIQ hereby represents and warrants that:

  • (a) the Services will have those features described the applicable documentation provided by PIQ; and
  • (b) that it will use commercially reasonable efforts to ensure that the Services are accessible in accordance with this Agreement.

In the event of any breach of this warranty, the Customer agrees, as PIQ’s sole and exclusive obligation and the Customer’s sole and exclusive remedy, to use commercially reasonable efforts to modify, correct or provide access to the relevant Services in accordance with the above.

13.2 The warranty in clause 13.1 is in lieu of any other warranties, and to the fullest extent permitted by Law (subject to clause 13.5) all other warranties are hereby excluded, and PIQ and its service providers hereby expressly disclaim all warranties or representations that:

  • (a) the Services or any PIQ Data will meet the Customer’s requirements;
  • (b) the Services or PIQ Data are fit for the Customer’s purpose or are otherwise suitable for the Customer’s use;
  • (c) the Services or PIQ Data will be compatible with, or suitable for use with, the Customer’s software or IT systems;
  • (d) the statistical methods on which any of the Services or PIQ Data are based use appropriate or accurate assumptions;
  • (e) the performance of the Services will not be affected by data entry errors, or errors made by PIQ’s Personnel, third party products integrating with or connecting with the Services including incorrect entries, double entries or delayed entries, or incorrect or untimely data supplied by any of them;
  • (f) the Services or any PIQ Data, will be error-free, correct, accurate, complete, reliable, secure, current, up-to-date or otherwise;
  • (g) that the Services will be secure, timely, uninterrupted or error-free, will operate in combination with any other hardware, software, system or data, or will meet the Customer’s requirements or expectations;
  • (h) any data stored by or as part of the Services will be accurate, reliable or secure;
  • (i) errors or defects with the Services will be corrected, however PIQ will endeavour to correct errors within a reasonable time of becoming aware of them;
  • (j) the Services will be free of viruses or other harmful components.

13.3 Except where provided elsewhere in this Agreement, PIQ is not obliged to support the Services, whether by providing advice, training, error correction, modifications, updates, new releases or enhancements or otherwise. PIQ reserves the right to carry out reasonable Modifications to the Services from time to time.

13.4 PIQ will not be liable for any error or defect in the Services, or any delay, to the extent that such error, defect, failure or delay occurs as a result of:

  • (a) any default of the Customer or any Users;
  • (b) any failure on the part of the Customer to meet the System Requirements;
  • (c) the Customer’s own systems, network, operations or end users; or
  • (d) the combination of the Services with any equipment, services, data, algorithms, models, indices, tools and/or products not supplied or authorised in writing by PIQ.

13.5 To the extent that any statutory guarantees under the Competition and Consumer Act 2010 (Cth), as amended or updated from time to time, apply then PIQ’s liability in respect of any breach of such statutory guarantees is limited:

  • (a) in the case of goods, to any one or more of the following (as PIQ may in its discretion determine):
    • (i) the replacement of the goods or the supply of equivalent goods;
    • (ii) the repair of the goods;
    • (iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
    • (iv) the payment of the cost of having the goods repaired; or
  • (b) in the case of services, to any one of the following (as PIQ may in its discretion determine):
    • (i) the supplying of the services again; or
    • (ii) the payment of the cost of having the services supplied again.

13.6 Except as otherwise expressly provided herein, the Services and the PIQ Data are provided to the Customer on an “as is, as available” basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for particular purposes, title, non-infringement, security, availability, accuracy, or otherwise. 

14. LIMITATION OF LIABILITY 

14.1 To the maximum extent permitted by Law, in no event will PIQ’s aggregate liability to the Customer exceed the amount of fees actually paid by the Customer to PIQ under this Agreement in the 12 months immediately preceding the event giving rise to the liability.

14.2 To the maximum extent permitted by Law, in no event will PIQ be liable for any Consequential Loss of any kind.

14.3 The Customer assumes all risk in using the Services and the PIQ Data.

14.4 PIQ has no liability whatsoever to the Customer or any other person, for:

  • (a) acts and omissions of, or any faults or defect in the Services or PIQ Data caused by any third party;
  • (b) any non-compliance with any relevant Laws by the Customer, regardless of whether the Services might enable such non-compliance, and
  • (c) the Customer’s inability to access or use any Services other than due to a breach by PIQ of this Agreement.

15. INFRINGEMENT CLAIMS 

15.1 PIQ will defend, or at its option settle, any third party claim or suit brought against the Customer on the basis that the Customer’s use of the Services as permitted by and in accordance with this Agreement, infringes any of such party’s Australian patents or copyrights, and will pay any final judgment entered against the Customer or any settlement of such claim or suit. PIQ’s foregoing obligations are subject to the following conditions:

  • (a) the Customer promptly notifies PIQ in writing of any allegation of infringement, and fully cooperates with PIQ, at PIQ’s reasonable cost, in the defence or settlement of such claim or suit;
  • (b) the Customer makes no admissions;
  • (c) the Customer, at PIQ’s request, allows PIQ or its assignee to solely conduct and/or settle all negotiations and litigation; and
  • (d) any costs incurred and recovered in such negotiations and litigation will be to the account of PIQ and/or its assignee.

15.2 PIQ’s obligations under clause 15.1:

  • (a) will not apply to, and the Customer will indemnify and hold PIQ and its service providers harmless from, any claim based upon use of any Services or any PIQ Data:
    • (i) in combination with any equipment, services, data, algorithms, models, indices, tools and/or products not supplied by PIQ or its service providers, if the alleged infringement would not have occurred but for such use; or
    • (ii) in breach of this Agreement or the Portal User Agreement; and
  • (b) are, to the fullest extent permitted by law, PIQ’s sole liability in respect of such a claim.

15.3 If at any time all or any part of the Services or the PIQ Data is, or in PIQ’s opinion may become, the subject of any claim or suit for any infringement, PIQ may, at its own expense and option, modify or replace the affected Services or PIQ Data so that it is non-infringing, or obtain for the Customer the right to continue using the affected Services or PIQ Data. If neither of the foregoing options is in PIQ’s opinion commercially reasonable, PIQ may terminate this Agreement with immediate effect. 

16. CUSTOMER INDEMNITY – THIRD PARTY CLAIMS 

16.1 The Customer will indemnify and hold PIQ and its service providers harmless from any third party claim or suit brought against PIQ or its service providers as a result of:

  • (a) any breach by the Customer of clauses 4, 5, 7, 8, 9, 11 or 12 of this Agreement;
  • (b) any misuse or reliance by the Customer of or on any Service, PIQ Data or any outputs (i.e. the Customer is responsible for everything that it inputs to the Services); or
  • (c) any use of the Services together with any other products, services or systems not provided to the Customer by or on behalf of PIQ.

The Customer will pay any final judgment entered against PIQ or its service providers, or any settlement of such claim or suit, and any costs incurred and recovered in such negotiations and litigation will be to the account of the Customer.

17. PROPER RECORDS, RIGHT TO INSPECT AND AUDIT 

Without limiting any of the other terms of this Agreement, during the Term, and for a period of 3 months after expiration or termination of this Agreement:

  • (a) the Customer will follow all reasonable instructions PIQ gives from time to time with regard to the use of the Services and PIQ Data;
  • (b) the Customer permits PIQ at all reasonable times to check that the Services and the PIQ Data are being used in accordance with the terms of this Agreement, and for such purposes the Customer must maintain complete and accurate records of the Customer’s use of the Services and the PIQ Data; and
  • (c) the Customer expressly acknowledges that PIQ has entered into various licensing agreements for ongoing use of data and software with various suppliers and, as such, PIQ has undertaken certain contractual obligations. To assist PIQ in meeting these obligations, the Customer agrees to comply with all reasonable requests of PIQ including:
    • (i) granting PIQ and its suppliers the right to inspect and/or audit the Customer’s records and/or system in order to audit the Customer’s use of the Services or PIQ Data, including any records kept at the Customer’s premises;
    • (ii) providing electronic copies to PIQ of the Customer’s records, including any records kept at the Customer’s premises, in order to audit the Customer’s use of the Services or PIQ Data; and
    • (iii) cooperating with any investigation concerning the use by the Customer of the Services or PIQ Data.

18. BREACH AND TERMINATION 

18.1 In the event that the Customer (or its Personnel) breaches:

  • (a) any term of this Agreement in a material way (including non-payment of any amounts, a breach under clause 18.3 or an un-remedied breach under clause 18.5); or
  • (b) any of clauses 4, 5, 7, 8, 9, 11, 12 or 21.4

PIQ may, at its election (and without limiting any other rights available to it under this Agreement or at Law), do any or all of the following:

  • (c) suspend or terminate the Customer’s access to the Services and/or PIQ Data immediately upon written notice to the Customer;
  • (d) commence proceedings against the Customer for any loss or damage PIQ suffers as a result of the breach; and
  • (e) refer the matter (including the Customer’s name and contact details) to any debt collector or other third party to assist PIQ in collecting any fee not paid to PIQ under the terms of this Agreement, including but not limited to conducting any consumer credit searches or listing the Customer with a credit reporting agency.

18.2 PIQ reserves the right to suspend or terminate the Customer’s access to the Services and/or PIQ Data in circumstances where:

  • (a) PIQ reasonably believes that the Customer (which includes its Personnel) has used or disclosed the Services, PIQ Data or other Confidential Information in a manner not permitted under this Agreement or otherwise has materially breached this Agreement; or
  • (b) a Force Majeure Event occurs that affects PIQ’s ability to provide the Services or PIQ Data.

18.3 If any use is made of the Services or the PIQ Data by any person or entity other than the Customer, and such use is attributed to the act or default of the Customer, then (without prejudice to PIQ’s other rights and remedies) the Customer will immediately be liable to pay to PIQ an amount equal to the charges which such person or entity would have been obliged to pay had PIQ granted a licence to the unauthorised user at the beginning of the period of the authorised use.

18.4 Either Party may terminate this Agreement, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:

  • (a) the other Party becomes Insolvent; or
  • (b) the other Party commits a breach of this Agreement and:
    • (i) the breach is material and not capable of being cured, or
    • (ii) if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) days of being notified in writing of the breach by the Party giving the notice (“Rectification Period”).

18.5 In the event that the Customer fails to rectify any breach within the Rectification Period, PIQ may, at its election:

  • (a) accept the Customer’s failure to rectify as a repudiation of this Agreement; and
  • (b) terminate this Agreement commencing from the date the Rectification Period expired.

18.6 In the event that this Agreement is terminated or expires, all of the Customer’s rights to use the Services and PIQ Data will immediately terminate, and the Customer will (at its expense) promptly return, or at PIQ’s election destroy, any copies of PIQ Data and other Confidential Information that are either in the Customer’s possession or under the Customer’s control. The Customer is responsible for all Fees incurred up to the date of termination or expiration.

18.7 If PIQ terminates the Customer’s access to the Services and/or PIQ Data under clause 18.2(b), PIQ will, within 30 days from the termination date, refund to the Customer any pre-paid Fees for Services that would have, but for termination, been provided after the termination date.

18.8 Termination of this Agreement will not act as a waiver of any breach of this Agreement and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Neither Party will be liable to the other for damages arising by reason of termination of this Agreement in accordance with its terms. Either Party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.

18.9 The following clauses will survive any termination of this Agreement: 1, 4, 8, 9, 11, 12.1(e), 12.1(f), 12, 14, 15, 16, 17, 18, 19 and 21. 

19. NOTICES 

19.1 All notices under this Agreement will be in writing addressed to the Parties at the respective addresses shown on the Order Form.

19.2 Notice will be deemed given:

  • (a) in the case of hand-delivered mail, upon delivery or in the case of mail upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving Party (such receipt not to be unduly delayed or withheld),
  • (b) in the case of ordinary mail, on the fourth day after the date of posting;
  • (c) in the case of email transmission, upon the email being sent (provided no ‘bounce back’ rejection email is received by the sender).

19.3 A Party may change its address for service of notices under this clause by giving at least 14 days’ written notification of the new address to the other Party. 

20. THIRD PARTY PRODUCTS 

By accessing, integrating and using any third party products supplied by PIQ or its third party suppliers, the Customer must comply with any relevant terms of use or specifications associated with such third party products.

21. MISCELLANEOUS 

21.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by the Party to be bound.

21.2 This Agreement will be governed by and construed in accordance with the Laws in force in the State of New South Wales. Each Party submits to the non-exclusive jurisdiction of the courts of that place.

21.3 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions of this Agreement will be binding unless in writing signed by each Party. Where PIQ amends the terms and conditions of this Agreement, including by releasing a new version of these terms and conditions, it will inform the Customer via a channel determined in PIQ’s sole discretion. The Customer will be deemed to have accepted such amendment(s) or new version unless it provides PIQ with written notice of its intention to terminate this Agreement within thirty (30) days of being informed of the relevant amendment(s). If the Customer elects to terminate this Agreement under this clause 21.3, within 30 days from the termination date, PIQ will refund to the Customer any pre-paid fees for Services that would have, but for termination, been provided after the termination date.

21.4 The Customer may not assign this Agreement including to any Related Bodies Corporate of the Customer, without obtaining PIQ’s written consent at least 90 days prior to the proposed date of assignment. PIQ reserves the right to increase the Fees payable under this Agreement as a condition of any proposed assignment by Customer.

21.5 PIQ may, upon prior reasonable notice, assign or otherwise deal with its rights under this Agreement without the Customer’s consent for legitimate business purposes (including business reconstruction, amalgamation or sale). PIQ may disclose any information or documents it considers reasonably necessary to help exercise this right, and may disclose such information to a person to whom it proposes to assign its rights to.

21.6  The Customer warrants that it has not relied on any representation made by PIQ which has not been expressly stated in this Agreement, or upon the descriptions or allusions or specifications contained in any document including any catalogue or other material produced or made available by PIQ.

21.7 Except as set out in this Agreement and subject to any applicable Law, PIQ will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from any occurrence of a physical natural disaster, including fire, flood, lightning, earthquake or acts of God, war, riot, national emergency, civil disorder, rebellion, revolution, strike, labour dispute, any circumstances relating to an epidemic or pandemic, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, unavailability, shortage or restriction of power supply, communications, communications infrastructure or third party services, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data, Law taking effect after the date of this Agreement, or any other circumstances beyond the control of PIQ or its service providers (as the case may be), whether happening in Australia or elsewhere (each a Force Majeure Event).

21.8 If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

21.9 Nothing contained or implied in this Agreement constitutes a Party as the partner, agent, or legal representative of the other Party for any purpose, nor does it create any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.

21.10 The rights and remedies provided in this Agreement are in addition to other rights and remedies given by Law independently of this Agreement.

21.11 This Agreement states all the express terms of the agreement between the Parties in respect of its subject matter, and supersedes all previous discussions, negotiations, understandings and agreements regarding the subject matter.

 

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