These are the Terms and Conditions (Terms) on which Creditor Watch Pty Ltd ABN 80 144 644 244 (CreditorWatch, we, us, our) provides you (Subscriber, you, your) access to this website www.creditorwatch.com.au (Site), the CreditorWatch System, and the Products (collectively, the Services).
Please read these Terms, our Privacy Policy, and our Product Terms carefully before accessing or using the Services.
You accept and agree to be bound by these Terms (including those additional terms and conditions and policies referenced or linked herein) when you visit the Site, and/or sign-up and access the Portal. If you do not agree to all these Terms, then you may not access the Services. If these Terms are considered an offer, acceptance is expressly limited to these Terms.
Unless otherwise specified by these Terms, we reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to the Site or the Portal. You can review the most current version of the Terms at any time on this page. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Services following the posting of any changes constitutes acceptance of those changes.
In these Terms, unless the context requires otherwise:
Account means an account created for use with the Portal.
Analytical Data means anonymised and aggregated statistical and analytical data that does not include Personal Information.
Billing Period means the monthly or other interval period between invoices for the Subscription Fees, as set out in the terms of your Subscription or as otherwise agreed with us.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales, Australia.
Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the Parties, before, on or after the Parties are bound by these Terms, relating to the business, products, services, customers or other affairs of the Discloser of the information but does not include information which is in or becomes part of the public domain other than through breach of these Terms. CreditorWatch’s Confidential Information includes Intellectual Property owned by CreditorWatch (or its licensors). The Subscriber’s Confidential Information includes the Subscriber Data.
CreditorWatch API means the application programming interface owned and/or licensed by CreditorWatch which allows the Subscriber to integrate its systems with CreditorWatch’s systems and access the Products.
CreditorWatch System means either:
a) the Portal; or
b) the CreditorWatch API,
as specified in your Subscription.
Data Breach means the accidental or unlawful destruction, loss, alteration, or unauthorised disclosure of, or access to Personal Information or Subscriber Data transmitted, stored or otherwise processed by CreditorWatch in connection with this Agreement.
Data Provider means any entity, government department, agency or other or organisation with which CreditorWatch or any of its related entities has or obtains an agreement from time to time for the provision of searches and records (such as ASIC, ATO, State and Federal courts, and the Australian Business Register).
Discloser means the party disclosing Personal Information to the other party (or its representatives) in connection with your Subscription or these Terms.
Fees means the Subscription Fee or further additional fees related to other Products you purchase via the CreditorWatch Systems.
Force Majeure Event means an event that is beyond the reasonable control of a party, excluding:
a) an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
b) a lack of funds for any reason.
Free Trial Period has the meaning given in clause 2.6.
Government Agency means any government or semi-government statutory, public or other authority or body having jurisdiction over CreditorWatch, the Subscription/Subscriber or the Products.
GST means the same as in the GST Law;
a) any other goods and services tax, or any tax applying to this Agreement in a similar way; and
b) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law means the same as ‘GST law’ in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Invoiced Subscription means a Subscription for which you and CreditorWatch agree you will pay for via regular invoices.
Major Change has the meaning given in clause 3.5b.
Online Subscription means a Subscription you purchase by selecting one of the options presented on the Site, and agreeing to pay for that Subscription via regularly debited credit card payments.
Party means a party to these Terms and Parties means both of them.
Password has the meaning given in clause 5.3.
Permitted User means the personnel of the Subscriber who are authorised to access and use the Products and the Portal, capped at the maximum number set out in the Subscription plan.
Personal Information means ‘personal information’ as that term is defined in the relevant and applicable Privacy Laws, and which is disclosed by the Subscriber to CreditorWatch in connection with this Agreement.
Personnel means in respect of a Party, that Party’s employees, officers, contractors and agents. To avoid doubt, CreditorWatch does not form part of the Subscriber’s Personnel.
Portal means the web based online platform owned and hosted by CreditorWatch located at www.creditorwatch.com.au.
Product Features means the tools, features, and functionality on the Products that Subscriber is permitted or authorised to access, as set out in the Subscription.
Privacy Laws means all relevant or applicable privacy or data protection laws relating to the collection, use, processing, disclosure, storage or granting of access to the Personal Information applicable to the relevant party and includes (only to extent the relevant parties are subject to it or required to comply with it under this Agreement): the Privacy Act 1988 (Cth), the Australian Privacy Principles, and any applicable State or Territory acts and regulations; and all applicable binding privacy codes or policies.
Products means the products you are permitted to access under your chosen Subscription, as well as additional products you purchase via the CreditorWatch System.
Product Terms means any additional terms relevant to use of one or all of the Products, as set out in a Schedule to these term or as otherwise published on the Site and varied from time to time.
Recipient means the party receiving Personal Information from the other party (or its representatives) in connection with these Terms.
Spam Laws means the spam prevention legislation applicable to Users’ use of the Services, which may include the Spam Act 2003 (Cth) in Australia, CAN-SPAM Act 2003 in the United States of America, the Spam Control Act 2007 in Singapore, and any analogous legislation applicable to the Users’ use of the Services.
Subscriber Data means all data, content, and information (including Personal Information) provided by you to CreditorWatch under your Subscription or otherwise under these Terms, including data, content, and information (including payment default data and Personal Information) created by or on behalf of you that is stored using, or inputted into, the Products.
Subscriber Environment means the Subscriber’s (and Users’) information technology, telecommunications, internet, and other relevant infrastructure that interfaces with the Portal.
Subscription means the Online Subscription or Invoiced Subscription plan you have selected to access the Products.
Subscription Fee means the fee applicable to your Subscription, as set out on the Site or Portal.
Subscription Period means the period in which you have a valid Subscription, commencing at the date set out in your Account settings, and ending when your subscription is terminated in accordance with these Terms.
Surcharge means a fee or charge in addition to the amount of a payment debited or paid from a credit card, subject to the limitations as set out by the Reserve Bank of Australia from time to time in accordance with the Payment Systems (Regulation) Act 1998 (Cth).
Third Party means any person who is not a party to these Terms.
Third Party Data has the meaning given in clause 2.4.
Underlying Systems means the software, IT solutions, systems and networks (including software and hardware) used to provide the Products, including any third party solutions, systems and networks.
Year means a 12 month period starting on the Start Date or the anniversary of that date.
2.1 Products
a) CreditorWatch will provide you with the Products via your Account, in accordance with these Terms.
b) You will receive access to the Products during the period of a valid Subscription via the CreditorWatch System strictly for your internal business purposes. You are not permitted to resell or otherwise make the Products available to any third party or otherwise commercially exploit the Products.
2.2 CreditorWatch’s General Obligations:
a) We will use all reasonable efforts to maintain the Services and ensure they are available for use by the Permitted Users. We will exercise reasonable care, skill and diligence in the provision of the Services, including the Products under your Subscription.
b) Notwithstanding clause 2a, we will not be liable for any reason where:
i) the Services are unavailable at any time or for any period;
ii) the Services are not error-free; or
iii) the information made available via the Services is not accurate, complete or current.
c) We may, in our sole discretion:
i) modify or update the Services at any time; or
ii) to the extent permitted by law, restrict access to all or part of the Services for any reason, at any time.
2.3 Availability of Products:
a) Subject to clause 4, CreditorWatch will use reasonable efforts to ensure that the Services are available on a 99.95% availability basis. CreditorWatch does not warrant that use of the Services will necessarily be uninterrupted or error free.
b) You acknowledge and agree that, on occasion, the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. CreditorWatch will use reasonable efforts to publish on the Portal and/or notify you by email advance details of any unavailability. CreditorWatch will otherwise have no liability to you for any such unavailability for maintenance, development or otherwise due to Force Majeure.
2.4 Third Party Data:
You acknowledge that the Products may contain or otherwise incorporate data or material from third parties including, from Data Providers (Third Party Data). CreditorWatch does not make any warranty or representation on the availability, accuracy or completeness of any such Third-Party Data. Any reliance on Third-Party Data is at your own risk. Furthermore, you acknowledge and agree that CreditorWatch may be required by a Data Provider to amend, delete or discontinue any Products that are sourced or derived from (or incorporate data sourced or derived from) that Third-Party Data Provider, and in such situations, CreditorWatch will have no liability to you for any such amendment, deletion or discontinuation.
2.5 Non-exclusive:
CreditorWatch’s provision of the Services to you is non-exclusive. Nothing in the Terms prevents CreditorWatch from providing the Services to any other person.
2.6 Free Trial:
a) CreditorWatch may, in its absolute discretion, provide you with access to a Subscription (or other Products) for a specified period of time, without requiring you to pay the Fees for the sole purpose of you assessing whether the Subscription (or other Products) are suitable for your purposes (Free Trial Period).
b) The following clauses will not apply to CreditorWatch during a Free Trial Period, to the maximum extent permitted by law:
i) clause 2 – CreditorWatch’s General Obligations;
ii) clause 3 – Availability of Products;
iii) clause 3 – Third party Intellectual Property Rights indemnity;
iv) clause 2 – CreditorWatch Warranties; and
v) clause 3 – Unlimited liability.
3.1 Your Account
a) Unless otherwise agreed with us, you are responsible for setting up your account and other accounts for your Permitted Users to access the Products.
b) You warrant that you and all Permitted Users accessing the Products will:
i) maintain current, complete and accurate information in their Account;
ii) keep any password used with the Services confidential, and not disclose it to any other person accessing the Services via their Account;
iii) change your password as soon as practicable if they have reason to suspect the password has been compromised;
iv) not permit any other person to use their Account or to access the Services with their password;
v) notify us immediately if they believe that any person has accessed their account in breach of these Terms;
vi) be at least the age of majority in their state or province of residence, or that if they are not the age of majority in their state or province of residence, they have obtained consent from their parent or legal guardian, and that they agree to be bound by these Terms; and
vii) if applicable, promptly update their Account and other information, including their email address and credit card numbers and expiration dates, so that we can contact them or complete transactions.
3.2 Multiple Users
a) Your Subscription applies to one Account. Unless otherwise agreed with us, your Subscription provides for multiple Permitted Users and if your Subscription is:
i) an Online Subscription – you must ensure each Permitted User creates their own sub-Account, and link each Permitted User’s own sub-Account to the Account to which the Subscription applies; or
ii) an Invoiced Subscription – you must procure each Permitted User’s consent to provide Creditor Watch with all reasonably required information in order for CreditorWatch to create their individual sub-Account, linked to the Account to which the Subscription applies.
3.3 Cancelling your Invoiced Subscription
a) If your Subscription is an Invoiced Subscription, you may choose to cancel your Subscription by written notice to us.
b) Where notice under clause 3(a) is received 30 days prior to the end of your current Billing Period:
i) your Subscription will end at the end of your current Billing Period; and
ii) you will have access to the Products until the end of your current Billing Period.
c) Where notice under clause 3b) is received less than 30 days prior to the end of your current billing period:
i) your Subscription will end at the end of your next Billing Period;
ii) you will have access to the Products until the end of your next Billing Period; and
iii) you must pay the invoice for that next Billing Period in accordance with clause 4, unless you terminate your Subscription as a result of a Major Change.
3.4 Cancelling your Online Subscription
a) If your Subscription is an Online Subscription, you may choose to cancel your Subscription at any time by choosing to cancel your Subscription within your Account.
b) Where you choose to cancel your Subscription under this clause 4, you will continue to have access to the Products until the end of your current billing period.
3.5 Our rights in relation to your Subscription
a) Without limiting clause 2c, you acknowledge and agree that we reserve the right to discontinue or modify your Subscription, the Products and/or Product Features from time to time, and that we may not always provide you with notice prior to such changes being made (including in relation to new Product or Product Feature releases).
b) We will make best efforts to provide you with at least 30 days’ notice of any decision to:
i) discontinue your Subscription;
ii) materially modify the Products accessible under your Subscription; and/or
iii) materially reduce or discontinue of any of the Product Features that will cause a substantial and detrimental impact to our customers’ use of the Products generally, as determined in our sole discretion.
(each a Major Change)
c) We may exercise these rights on a case-by-case basis. Any Subscription restrictions may be applied to Subscriptions placed by or under the same account or credit card, and/or Subscriptions that use the same billing and/or shipping address. In each case, we will provide you with notice as soon as possible.
4.1 Fees:
a) You must pay CreditorWatch the Fees as set out on the Site, the details of your Subscription, or as otherwise agreed with Us.
b) Where your Subscription is an Online Subscription, your Subscription Fee is the fee specified on the Site immediately before the Subscription Period commenced, and as amended from time to time in accordance with these terms.
c) Where your Subscription is an Invoiced Subscription, your Subscription Fee is the fee agreed to in writing by you and CreditorWatch immediately before the commencement of the Subscription Period.
d) For the avoidance of doubt, Fees paid prior to cancellation of your Subscription in accordance with clauses 3 or 3.4 will not be refunded to you, unless otherwise agreed with us.
4.2 Payment – Online Subscriptions
Where your Subscription is an Online Subscription:
a) CreditorWatch will debit your Subscription Fee and any applicable Surcharge from the credit card linked to your Account at the time you agree to commence a Online Subscription (or, where applicable, at the end of the relevant Free Trial Period);
b) CreditorWatch will continue to debit your Subscription Fee and any applicable Surcharge from the credit card linked to your Account every 30 days following the commencement of the Subscription Period, until the Subscription Period ends in accordance with these terms; and
c) You must ensure you have valid credit card details linked to your Account at all times.
4.3 Payment – Invoiced Subscriptions
a) Where your Subscription is an Invoiced Subscription:
i) CreditorWatch will issue you with invoices in advance for the Subscription Fees relevant to your Subscription during the relevant Billing Period, ahead of the commencement of that Billing Period; and
ii) you must pay all undisputed invoices within 14 days from the date of the invoice (unless otherwise agreed by you and us).
b) If you have agreed with CreditorWatch that the invoice will be paid by credit card, then an applicable Surcharge may also apply.
4.4 Overdue amounts:
a) CreditorWatch may charge interest on the outstanding Subscription Fee or any other overdue amounts where:
i) CreditorWatch is unable to debit a payment from your credit card in accordance with clause 2; or
ii) you fail to pay any Subscription Fee by the due date specified on the relevant Invoice issued under clause.
b) Interest will be calculated from the Invoice due date or date on which your credit card was to be debited (whichever is relevant) to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by CreditorWatch’s primary trading bank as at the due date plus 2% per annum.
c) You will pay us any reasonable costs incurred by us in relation to collection of any amounts owing.
4.5 Adjusted Subscription Fee:
a) CreditorWatch may adjust the Subscription Fee at any time and frequency as required to pass through any increase in fees or charges charged by a Data Provider which are incurred by CreditorWatch in order to provide the Products. CreditorWatch will provide you with at least 30 days’ written notice of such increase.
b) In addition to any other right that CreditorWatch has under these Terms to adjust the Subscription Fee, CreditorWatch may increase the Subscription Fee at any time by providing you with at least 30 days’ written notice of such increase.
c) If you do not wish to pay a Subscription Fee increased under this clause 5 and your Subscription is an:
i) Invoiced Subscription – the notice period relevant to your termination under clause 3 is reduced to no less than 10 days (provided the notice is received by CreditorWatch before the effective date of the Subscription Fee increase); or
ii) Online Subscription – you may terminate your Subscription at any time in accordance with clause 3.4.
d) If you do not terminate your Subscription in accordance with this clause, you are deemed to have accepted the increased Subscription Fees.
5.1 Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
5.2 In addition to paying the Subscription Fees, you will:
a) pay to CreditorWatch an amount equal to any GST payable in respect of any supply by or through CreditorWatch in respect of which the Subscription Fees or any other amount payable under these Terms; and
b) make such payment either on the date when the Subscription Fees or other amounts to which it relates is due.
5.3 CreditorWatch will issue complying tax invoices (or adjustment notes, if applicable) to the Subscriber for any supply or adjustment under or in connection with this agreement in respect of which the Fees are consideration.
5.4 To the extent that any other supply made between the parties under or in connection with these Terms is a taxable supply and GST is not expressly included in the consideration, the recipient must pay, in addition to the consideration provided under these Terms for that supply an amount (additional amount) equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of the supply. The recipient must pay the additional amount at the same time as the consideration to which it is referable. The supplier must issue a tax invoice to the recipient of a taxable supply no later than 7 days following payment of the GST inclusive consideration for that supply.
5.5 Each party represents and warrants that it is registered for the purposes of the GST Law.
6.1 General use:
You must:
a) provide us with all information and documentation, including any Subscriber Data, we reasonably request to assist us in providing the Products to your Permitted Users;
b) use the Services in accordance with these Terms;
c) also use the Products in accordance with the Product Terms, as amended from time to time;
d) ensure that all Subscriber Data (including (without limitation) any payment default data that you register on the Portal) is accurate, current and is not misleading;
e) not reproduce, duplicate, copy, sell, resell or make available the Products (or any portion thereof) to any third party, or otherwise commercially exploit the Products, without express written permission by us.
6.2 Your Acknowledgements:
You acknowledge and agree that:
a) your and the Permitted Users’ use of, or inability to use, the Services is at your sole risk;
b) you must pay for all Products that you order through the CreditorWatch System, including without limitation all Products (and the volume of all products) ordered or supplied at your request via the CreditorWatch API;
c) the Services and all products and services delivered through the Services are (except as expressly stated by us and to the extent permitted by law) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement;
d) all title in and to the Services, and any software or equipment used by us in connection with the provision of the Services remains at all times with us;
e) the information provided by the Services should not be relied upon or used as the sole basis for making decisions;
f) any reliance on information contained in the Services is at your own risk;
g) the Services may contain certain historical information that, necessarily, is not current and is provided for your reference only;
h) you must monitor all changes to information on the Services;
i) we do not gurantee, represent or warrant that the functions contained in the Services will meet your particular requirements;
j) we do not gurantee, represent or warrant that the functions contained in the Services will guarantee any particular outcome;
k) we do not guarantee, represent or warrant that your use of the Services will be uninterrupted, timely, secure or error-free;
l) components of the Services, or Permitted Users’ access to the Services, may be performed via third parties, including telecommunications and internet service providers;
m) outages, performance degradations or unavailability attributable to such third parties are beyond our control and may impact our ability to provide the Services to you; and
n) Subscriber Data may be transferred unencrypted and involve:
i) transmissions over various networks; and
ii) changes to conform and adapt to technical requirements of connecting networks or devices.
6.3 Portal access conditions:
When accessing the Services, you and your Permitted Users must:
a) not attempt to undermine the security or integrity of the Underlying Systems;
b) not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
c) not attempt to view, access or copy any material or data other than:
i) that which you are authorised to access; and
ii) to the extent necessary for you and your Permitted Users to use the Services in accordance with these Terms;
d) not impersonate another person or misrepresent authorisation to act on behalf of others or CreditorWatch;
e) neither use the Services in a manner, nor transmit, input or store any Subscriber Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is incorrect or misleading;
f) comply with any terms of use (including these Terms or any Product Terms) as applicable, and as updated from time to time by CreditorWatch;
g) not share any login credentials or otherwise enable unlawful access to the Services by any other person; and
h) not reproduce, decompile, disassemble, translate, replicate, modify, create derivative works of, download, store, transmit or otherwise reverse engineer any software programs or any portion of the Products, the Portal or the Underlying Systems (including any source code, object code, algorithms, methods, processes or techniques used or embodied in them), except as strictly permitted under these Terms.
6.4 Your Permitted Users:
a) Without limiting clause 2, you must ensure that no individual accesses the Services under your Subscription, other than you or your Permitted Users.
b) You must procure each Permitted User’s compliance with these Terms, including clauses 1, 4.2 and 4.3, and any other reasonable condition notified to you by CreditorWatch.
c) A breach of these Terms by your Personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Terms by you.
6.5 Authorisations:
You are responsible for procuring all licences, authorisations and consents required for you and your Permitted Users to use the Services in accordance with these Terms, including to use, import, transfer, store and input Subscriber Data into, and process and distribute Subscriber Data through, the Products.
6.6 Subscriber Indemnity:
You hold harmless and indemnify CreditorWatch and its subsidiaries, respective successors, assigns, directors, officers and employees against any liability, demand, claim, proceeding, damages, liability, cost, expense (including the actual legal fees charged by CreditorWatch’s solicitors) and loss of any kind arising from directly or indirectly from any actual or alleged claim by a third party:
a) in relation to any of your product/s and/or service/s that integrates or otherwise contains, whether in whole or in part, the Products;
b) that any Subscriber Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Subscriber Data is incorrect or misleading;
c) that the transfer or importation of any Subscriber Data to CreditorWatch or the Portal infringes the rights of that third party; or
d) regarding the accuracy or currency of any registered payment defaults identifiable via the Services.
7.1 Data Security:
CreditorWatch will take all commercially reasonable steps, and will comply with industry best practice, to prevent Data Breaches.
7.2 Backups of Subscriber Data:
CreditorWatch has a data backup policy governing the method and frequency of backing-up Subscriber Data. The data backup process must ensure that the data is stored securely, encrypted and its integrity is maintained. While CreditorWatch will take standard industry measures to back up all Subscriber Data stored using the Products, you agree to keep a separate back-up copy of all Data uploaded by you onto the Portal or otherwise provided by you to CreditorWatch.
7.3 Your Security Obligations:
You are solely responsible for keeping any passwords or other log-in details or tokens provided to you by CreditorWatch for the purpose of accessing and using the Products (Password) secure from unauthorised access or use, and confidential. You will maintain and operate reasonable technical, organisational, operational and contractual measures to ensure the security of your systems and environment used to access and use the Products.
7.4 CreditorWatch Obligations:
a) CreditorWatch will, as soon as reasonably practicable, notify you where it becomes aware of a Data Breach and will use commercially reasonable endeavours to identify the source or cause of that Data Breach.
b) If the Data Breach is not caused by you, your Personnel or any of your Permitted Users, CreditorWatch will provide reasonable assistance to you to further identify the source or cause of the Data Breach, collect and maintain any evidence of the Data Breach and minimise the prospects of any repeat incidents the same as or similar to the Data Breach.
7.5 Your Data Breach Obligations:
Where you have reasonable grounds to suspect a Data Breach has occurred, you will:
a) use all reasonable efforts to notify CreditorWatch in writing including all relevant details regarding the suspected Data Breach as soon as you become aware of the Data Breach;
b) co-operate with CreditorWatch to investigate the suspected Data Breach;
c) take all reasonable steps to mitigate the impact of the Data Breach;
d) take all reasonable actions to prevent any repeat of the Data Breach;
e) co-operate with CreditorWatch in good faith to minimise reputational damage or loss of goodwill, including liaising on communications with the OAIC, affected individual(s) and other third parties to minimise disruption or distress.
7.6 Permitted User:
You must ensure that all Permitted Users will:
a) maintain and operate an appropriate level of security for its systems and facilities used to access and use the Services;
b) take appropriate data security measures in relation to the Subscriber Data within its systems and facilities, having regard to the nature of the Subscriber Data; and
c) notify CreditorWatch immediately of any unauthorised access to your systems or facilities or to the Products, including any loss or misuse of Confidential Information or Subscriber Data.
To the extent that a Permitted User or a third party contractor provides, operates or maintains any systems or facilities that you use to access or use the Products, you will be responsible for any act, omission or default of that third party with regard to such systems or facilities, as if that were your own act, omission or default.
7.7 No Responsibility:
a) You acknowledge and agree that CreditorWatch will not be responsible for any Data Breach resulting from or otherwise aided by your conduct or any failure to maintain the security or confidentiality of any Password, or any failure to comply with clause 11.
b) You agree to immediately notify CreditorWatch if you have any reason to believe that the security or confidentiality of any Password has been compromised.
7.8 Third Party Access:
a) You acknowledge that CreditorWatch may be required by Law to permit Third Parties, such as Government Agencies, to access and inspect its premises and any data under its possession or control (including Subscriber Data).
b) You agree to CreditorWatch permitting such Third Parties to access and inspect such premises and data for that purpose. Where reasonably able to do so, CreditorWatch will provide you with prior notice of any required Third Party access under this clause.
8.1 Compliance with Privacy Laws:
Each Party will ensure it and its Personnel will comply with all Privacy Laws applicable to Personal Information collected, used, disclosed, stored or received in connection with these Terms.
8.2 Subscriber Obligation:
You undertake for yourself, and on behalf of your Personnel, to:
a) notify your customers, clients or other individuals to whom Personal Information you collect relates of any matter prescribed by any Privacy Laws in relation to the collection, use, disclosure, handling and storage of your Personal Information, including the transfer and disclosure of and use such Personal Information by CreditorWatch in accordance with these Terms;
b) ensure that any Personal Information transferred or disclosed to CreditorWatch is collected fairly and reasonably, and is complete, accurate and up to date; and
c) notify CreditorWatch immediately upon becoming aware of any breach of any Privacy Law in relation to any Personal Information transferred or disclosed to CreditorWatch under these Terms.
8.3 Disclosure to CreditorWatch:
You must not use or disclose any Personal Information supplied to you and in your control to CreditorWatch except where you:
a) are authorised by applicable Privacy Laws, or any privacy policy, privacy code or privacy collection notice set forth by you, to collect, use, disclose, handle or store the Personal Information in the manner required by these Terms so that CreditorWatch may lawfully collect, use, disclose, handle or store the Personal Information in order to comply with its obligations or exercise its rights under these Terms; and
b) have informed and have obtained valid consents of the individual to whom the Personal Information relates that in order to provide goods or services to that individual it might be necessary for you to disclose the individual’s Personal Information to a Third Party or CreditorWatch.
8.4 CreditorWatch obligations:
CreditorWatch will:
a) collect, use, disclose and otherwise deal with Personal Information you disclose to it for the purpose of performing its obligations and exercising its rights under these Terms, in accordance with its privacy policy;
b) effect and maintain reasonable security measures to protect the Personal Information against misuse, interference and loss, and unauthorised access, modification or disclosure;
c) implement appropriate procedures and controls to respond to actual or suspected data breaches; and
d) to the extent permitted by Law:
i) will provide reasonable assistance to you, at your cost:
ii) will provide all necessary information and reasonable cooperation, at your cost, to assist you to comply with your data breach notification obligations under the applicable Privacy Laws; and
iii) will use reasonable endeavours to permanently de-identify, delete or destroy all or any specifically identified Personal Information that is in its possession or control which is no longer required for the purposes of these Terms.
8.5 No obligation:
You acknowledge and agree that CreditorWatch is under no obligation to:
a) withhold any Personal Information or related data, documentation or other records from any Government Agency with apparent authority to seek delivery or access to such Personal Information or data, documentation or other records; or
b) refuse to provide any such Government Agency such Personal Information or data, documentation or other records.
9.1 CreditorWatch access to Subscriber Data:
You acknowledge that:
a) CreditorWatch may require access to the Subscriber Data to exercise its rights and perform its obligations under these Terms; and
b) to the extent that this is necessary but subject to clause 11 (Confidentiality), CreditorWatch may authorise a member or members of its personnel to access the Subscriber Data for this purpose.
9.2 Analytical Data:
You acknowledge and agree that:
a) CreditorWatch (and any Third Party software provider, service provider or integration partner appointed by CreditorWatch) may:
i) use Subscriber Data to generate Analytical Data; and
ii) use Analytical Data for CreditorWatch’s product development purposes including, without limitation, for the purposes of generating industry benchmarks, enriching CreditorWatch’s bureau data, generating credit scores or similar reports for distribution to and consumption by other customers of CreditorWatch or to otherwise use the Analytical Data in accordance with the terms of these Terms;
b) CreditorWatch’s rights under this clause 2 will survive termination or expiry of the Subscription/s to which said rights relate; and
c) Title to, and all Intellectual Property Rights in, Analytical Data is and remains CreditorWatch’s property. You agree that you will not be compensated for CreditorWatch’s generation, ownership, use, or otherwise in respect of the Analytical Data.
10.1 Ownership:
a) Subject to clause 2, title to, and all Intellectual Property Rights in, the Services, the Analytical Data and all Underlying Systems is and remains the property of CreditorWatch (and its licensors as the case may be).
b) You:
i) must not contest or dispute that ownership, or the validity of those Intellectual Property Rights;
ii) acquire no Intellectual Property Rights in the the Services, the Analytical Data or the Underlying Systems except to the extent of the specific entitlements expressly conferred by these Terms; and
iii) must not do or allow to be done any act or thing which may infringe CreditorWatch’s Intellectual Property Rights in the Services, the Analytical Data and all Underlying Systems.
10.2 Subscriber Data
a) Title to, and all Intellectual Property Rights in, the Subscriber Data (as between the parties) remains your property.
b) You grant CreditorWatch a worldwide, non-exclusive, royalty-free, sublicensable, transferable and irrevocable licence to use, store, copy, modify, make available and communicate the Subscriber Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with these Terms.
c) You acknowledge and agree that CreditorWatch:
i) is under no obligation to monitor any information or material, including any Subscriber Data, you or a Permitted User may transmit or otherwise make available through the Services; and
ii) may remove any information or material, including Subscriber Data, from the Services at any time in its sole discretion.
d) You acknowledge and agree that you are responsible for:
i) the accuracy, completeness and legality of your Subscriber Data, and the legality of the means by which you have acquired your Subscriber Data;
ii) the legality of the transfer or importation of your Subscriber Data to CreditorWatch or the Portal;
iii) effecting and maintaining appropriate security measures to secure Subscriber Data of Permitted Users, and Permitted Users’ access to and use of the Services;
iv) preventing the unauthorised access to or use of the Products or the Subscriber Data when at rest at the Permitted User’s systems, or in transit between the Permitted User’s systems and the Services; and
v) notifying CreditorWatch promptly of any breach of security or any unauthorised access to or use of the Services or Subscriber Data (regardless of the cause of such breach or unauthorised access or use).
10.3 Third party Intellectual Property Rights indemnity:
a) CreditorWatch indemnifies you against any claim or proceeding brought against you to the extent that claim or proceeding alleges that the Subscriber’s use of the Services in accordance with these Terms constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). This indemnity is subject to you:
i) promptly notifying CreditorWatch in writing of the IP Claim;
ii) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without CreditorWatch’s prior written consent; and
iii) giving CreditorWatch complete authority and information required for CreditorWatch to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for CreditorWatch’s account.
b) The indemnity in clause 3a does not apply to the extent that an IP Claim arises from or in connection with:
i) you or your Permitted Users’ breach of these Terms;
ii) use of the Services in a manner or for a purpose not reasonably contemplated by these Terms or otherwise not authorised in writing by CreditorWatch;
iii) any third party data or any Subscriber Data;
iv) use of the Services other than in accordance with these Terms; or
v) your own products or services, or the manner in which the Products or Services have been incorporated into your own products or services.
11.1 Security:
Each party must:
a) keep confidential at all times the Confidential Information of the other party;
b) effect and maintain adequate and appropriate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 1a and 11.1b.
11.2 Permitted disclosure:
The obligation of confidentiality in clause 11.1 does not apply to any disclosure or use of Confidential Information:
a) for the purpose of performing these Terms or exercising a party’s rights under these Terms;
b) required by law (including under the rules of any stock exchange);
c) which is publicly available through no fault of the recipient of the Confidential Information or its Personnel; or
d) which was rightfully received by a party to the Terms from a Third Party without restriction and without breach of any obligation of confidentiality.
12.1 Mutual warranties:
Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when signed, will constitute binding obligations on the warranting party.
12.2 Creditor Watch Warranties:
CreditorWatch warrants that:
a) it has made all reasonable efforts to ensure the Services do not contain any viruses, trojans, or other contaminating, malicious or destructive properties or code, except for any such malicious code contained in Subscriber Data or otherwise originating from your or your Permitted Users; and
b) it owns or is otherwise licensed or authorised to use the Intellectual Property Rights in the Services and it has the right to grant the licenses and rights to you in the manner contemplated under these Terms.
12.3 Your Warranties:
You warrant that:
a) your use of, or the performance of CreditorWatch’s obligations under these Terms requiring the use of the Subscriber Data will not infringe the rights, including the Intellectual Property Rights, of any Third Party;
b) you will take all reasonable precautions to safeguard your business, the Subscriber Environment, the Services and the Subscriber Data to minimise any loss or disruption; and
c) you will comply with CreditorWatch’s reasonable instructions regarding access to the Services.
12.4 No implied warranties:
a) To the maximum extent permitted by law CreditorWatch’s warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded.
b) You acknowledge and agree that CreditorWatch does not warrant or represent or guarantee nor is it a condition of these Terms that the functions contained in the Services will meet your particular requirements or preferences or those of any third party nor guarantee any particular outcome or that the operation of the Services will be uninterrupted or free of errors.
12.5 Warranties under Law:
Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Parties by the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement.
13.1 Maximum liability:
The maximum aggregate liability of CreditorWatch under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Subscription Fee paid by you under these Terms in the previous Year (which in the first Year is deemed to be the total Subscription Fees paid by you from the Start Date to the date of the first event giving rise to liability).
13.2 Unrecoverable loss:
Neither party is liable to the other under or in connection with these Terms or the Services for any:
13.3 Unlimited liability:
a) Clauses 1 and 13.2 do not apply to limit CreditorWatch’s liability:
i) under the indemnity in clause 3a; or
ii) under or in connection with these Terms for:
b) Clause 2 does not apply to limit your liability:
i) to pay the Subscription Fee;
ii) under the indemnity in clause 6; or
iii) under or in connection with these Terms for:
13.4 Mitigation and contributory negligence:
Neither party shall be liable to the other party for any amount if and to the extent that such amount:
a) would have been avoided or reduced by the other party taking reasonable steps to mitigate the loss; and/or
b) would (if the amount had been claimed as damages) have been reduced by reason of the other party’s contributory negligence.
14.1 Termination rights:
a) Without otherwise limiting these Terms, either party may, by notice to the other party, immediately terminate your Subscription if the other party:
i) breaches any material provision of these Terms and the breach is not:
ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
iii) is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.
b) CreditorWatch may, by notice in writing, terminate your Subscription in whole or in part (by reference to specified Products) where it is directed to do so by a Data Provider. When exercising its rights under this clause, CreditorWatch will use reasonable commercial endeavours to provide as much notice as possible in the circumstances.
c) Without limiting clauses 3, 8 or this clause 14, we may terminate your Subscription, access to the Services, and these Terms, if you fail to make payment of your Subscription Fee in accordance with clause 8, and have not rectified the non-payment within seven (7) Business Days of receiving written notice requiring you to do so.
14.2 Consequences of termination:
a) Termination of your Subscription does not affect either party’s rights and obligations that accrued before that termination or expiry, or the operation of these terms in relation to your access to the Site.
b) On termination of your Subscription:
i) you must pay all amounts due and payable to us (whether or not invoiced) including Subscription Fees due prior to that termination or expiry; and
ii) you must cease accessing or using the Products.
c) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of your Subscription, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
14.3 Obligations continuing:
Clauses which, by their nature, are intended to survive termination of your Subscription, including clauses 4.6, 9, 11, 13, 14.2, 14.3 and 15, continue in force.
15.1 Good faith negotiations:
Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, your Subscription or these Terms through good faith negotiations.
15.2 Obligations continue:
Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
15.3 Right to seek relief:
This clause 15 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
16.1 Force Majeure:
Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
a) immediately notifies the other party and provides full information about the Force Majeure;
b) uses best efforts to overcome the Force Majeure; and
c) continues to perform its obligations to the extent practicable.
16.2 Rights of third parties:
No person other than CreditorWatch and you as the Subscriber has any right to a benefit under, or to enforce, these Terms.
16.3 Waiver:
To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
16.4 Notices:
A notice given by a party under these Terms must be delivered to the other party via email using the email address set out below or otherwise notified by the other party for this purpose.
16.5 Severability:
If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason, the relevant provision shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible, then such provision shall be severed from these Terms without affecting the enforceability, legality or validity of any other provision of these Terms.
16.6 Entire agreement:
These Terms, together with our Privacy Policy, set out everything agreed between us relating to your Subscription and the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the commencement of the Subscription Period. The parties agree and acknowledge they have not relied on any representation, warranty or agreement relating to the subject matter of these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the commencement of the Subscription Period.
16.7 Assignment:
You must not assign your interest in these Terms or any of your rights or obligations under these Terms without our prior written consent, such consent not to be unreasonably withheld or delayed. We may assign, novate or otherwise transfer our interest in these Terms or any of our rights or obligations under these Terms without your consent.
16.8 Governing Law:
These Terms are governed by the law of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of its courts and appellate courts.
