In these terms and conditions, unless the context otherwise requires:
Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
Note: “Control” for the purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity, provided that any such Affiliate will be deemed an Affiliate only for so long as such control lasts.
Claim means any claim (including any demand, action, cause of action, proceeding, suit, litigation, arbitration, judgment, verdict) regardless of how or when it arises, whether based in contract, tort or under statute, whether at law or in equity, and regardless of jurisdiction.
Confidential Information (of a party), means:
- any and all non-public information which is now or at any time before or after the date of the applicable Proposal, disclosed to, or otherwise received by, the other party (the receiving party) pursuant to these terms and conditions concerning the disclosing party, or its business, products or services that has been identified as confidential or proprietary or would be understood to be confidential or proprietary by a reasonable person, whether orally or in writing.
- does not include information that:
- was, is or has become lawfully available to the public otherwise than through breach of these terms and conditions or any other obligation of confidence; or
- was known to and at the free disposal of the receiving party prior to the date of disclosure of such Confidential Information to it; or
- was disclosed to the receiving party by a third party having the right to make such disclosure.
Data Security Policy means the document outlining the data security measures which Trendspek will implement in relation to data stored on or processed by the Platform available at https://trendspek.com/information-and-data-security-policy, as may be updated from time-to-time.
Documentation means all written or other visual Material relating to the operation and use of the Platform, as made available from time to time by Trendspek, including:
- usage policies;
- technical documentation;
- operating instructions;
- update notes; and
- support knowledge base.
Enriched Functionality means an enhancement to Platform functionality provided by a Trendspek Provider.
Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Intellectual Property Rights means all current and future intellectual property rights including copyright, trademarks, designs, patents, including any application or right to apply for registration of any such rights whether created before or after the date of these terms and conditions, and whether registered or unregistered, existing in Australia or otherwise.
Law means any:
- Commonwealth, State, Territory or local government legislation in force in Australia or any law of a foreign jurisdiction applicable to the Platform, including regulations, by-laws, declarations, ministerial directions and other subordinate legislation;
- common law; and
- Government Agency requirement or authorisation (including conditions in respect of any authorisation).
Limitation Amount means the sum of the Fees paid by the Subscriber and received by Trendspek in the 12 months prior to the date on which the cause of action, relating to a Subscriber Claim first arose.
Loss includes any liability, damage, costs (including legal costs on a lawyer and own client basis) and other outgoing, and any diminution in value of, or deficiency of any kind, in anything.
Material means written or other human readable or machine-readable expressions of information, images, designs, models, software (including source and object code), data and know how.
Moral Rights means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed as conferred by the Copyright Act 1968 (Cth).
Proposal means a document recording the commercial details of a Subscription, including the screen displayed when making an online purchase for a Subscription.
Each Proposal, once accepted by the Subscriber becomes, and is incorporated as, part of these terms and conditions.
Platform Data means data sets collected or produced by the operation of the Platform:
- for the benefit of the Subscriber;
- using Subscriber Data; and/or
- using Third Party Data.
Personal Information means information about an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier or one or more factors specific to the identity of that natural person.
Platform means the Trendspek (which may include machine learning and artificial intelligence) Platform that is the subject of an Proposal.
Privacy Legislation means:
- the Privacy Act 1988 (Cth); and
- any other similar legislation - to the extent that such legislation applies to the Subscriber or Trendspek (such as General Data Protection Regulation EU and California Consumer Privacy ActCiv.Code) from time to time.
Subscriber Data means any data sets or other Material provided by (or on behalf of) the Subscriber to Trendspek for use on or in respect of the Platform.
Subscription means the right to access the Platform and features of the Platform for the relevant Term.
Subscription Fee means the amount payable by the Subscriber for each Subscription.
Support means the technical support provided by Trendspek in accordance with the Technical Support and Service Level Policy, available at https://trendspek.com/technical-support-service-level-policies as may be updated from time-to-time.
Term means the duration of the period, during which the Subscriber is authorised to use the Platform.
Third Party Data means data sets that are not provided by the Subscriber but are sourced by Trendspek from:
- Trendspek Providers; and/or
- other persons who subscribe to the Platform.
Trendspek Background Materials means all Materials which are:
- owned by Trendspek, or licensed to Trendspek; and
- developed or acquired by Trendspek.
Trendspek Provider means an entity which provide products, data or services to Trendspek to assist or enhance Platform functionality.
Updates means Trendspek’s updates of the Platform for repairs, enhancements or new features, including updates to the Documentation as a result of such updates.
Users means the officers, employees, contractors or third parties of the Subscriber who are authorised by the Subscriber to use the Platform and to whom have been issued unique user identifications and passwords.
2.1. In these terms and conditions, unless the context otherwise requires:
- words denoting any gender include all genders;
- headings are for convenience only and do not affect interpretation;
- the singular includes the plural and vice versa;
- a reference to a party includes its successors and permitted assigns;
- a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity; and
- a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.
2.2. Should there be any conflict between these terms and conditions and the terms outlined in a Proposal, the Proposal will take priority to the extent of any inconsistency.
3.1. Each Subscription acquired by the Subscriber to use the for the Term specified in the applicable Proposal.
3.2. Any Subscription Fee specified by Trendspek does not include sales tax, consumption tax or other taxes (including GST) or withholding tax as may be required by Trendspek to collect, unless otherwise specified.
3.3. All Subscription Fees are non-refundable, unless otherwise specified in these terms and conditions.
3.4. To the extent that payments to be made by the Subscriber are subject to a sales tax, consumption tax or a withholding tax (including GST) the amount of such tax will be shown as a separate item on the relevant invoice and will be added to the Subscription Fee.
3.5. Trendspek may accept various forms of payment, including credit and debit cards, and payments made through third party service providers. Additional terms with your payment provider may apply. Trendspek reserve the right to refuse or cancel orders at any time and in Trendspek’s sole discretion. The Subscriber is solely responsible for any fees, costs, taxes, equipment, and software that it may be required in connection with its use of the Platform.
3.6. Trendspek reserves the right to designate jurisdictions in which the Platform will not be available for access by the Subscriber.
3.7. Trendspek reserves the right to refuse a proposed User access to the Platform in order to protects its legitimate business interests.
4. Trendspek Responsibilities
4.1. Trendspek will comply with its obligations under any policies referred to in these terms and conditions.
4.2. Trendspek will, in the performance of its obligations under these terms and conditions:
- comply with applicable Laws;
- act in a diligent and professional manner; and
- obtain and maintain any applicable licences and permits required for the conduct of its business.
4.3. Trendspek may provide the Subscriber additional services as requested by the Subscriber from time to time at Trendspek’s rates, as current at the time the additional services are provided.
5. Subscriber Responsibilities
5.1. The Subscriber, in the performance of its obligations under these terms and conditions, must ensure the Subscriber and all Users:
- comply will applicable Laws; and
- do not infringe the Intellectual Property Rights of Trendspek or any Trendspek Provider;
- do not share its login credentials for the Platform with any person (other than its Users);
- promptly notify Trendspek in writing if the Subscriber becomes aware of any unauthorised access to or use of the Platform by any person;
- do not violate any export embargo, prohibition, restriction or other similar law in connection with these terms and conditions; and
- adhere to usage policies published by Trendspek on the Platform.
5.2. The Subscriber must pay the Subscription Fee in accordance with each applicable Proposal.
5.3. The Subscriber must notify Trendspek in writing if any claim is made against the Subscriber in relation to its use of the Platform.
5.4. The Subscriber grants to Trendspek a royalty free, non-exclusive, perpetual, world-wide licence to use any improvements proposed, or other suggestions made, by the Subscriber or Users in respect of the Platform.
5.5. The Subscriber must provide Subscriber Data to Trendspek in accordance with the timing and formatting requirements as communicated to Subscriber in writing by Trendspek.
5.6. The Subscriber must ensure that it’s Users comply with these terms and conditions.
6. Data Governance
6.1. The Subscriber has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use Subscriber Data, and hereby represents that it has and will continue to have all rights and consents necessary to allow Trendspek to use all such Subscriber Data as contemplated by these terms and conditions.
6.2. The Subscriber:
- grants to Trendspek a perpetual royalty-free, non-exclusive, transferable worldwide licence to reproduce, use, process, transfer and store Subscriber Data for the purposes of enabling:
- continued improvements to occur to the algorithms underlying the operation of the Platform; and
- Trendspek to perform its obligations to the Subscriber under these terms and conditions and each Proposal.
- warrants to Trendspek that Subscriber Data will not contain Personal Information to the extent that it is provided for use in respect of a Platform whose functionality does not require Personal Information.
6.3. Trendspek is entitled to collect, use and disclose qualitative and quantitative data derived from Platform Data and the use of the Platform by the Subscriber for the purpose of undertaking and publishing industry analysis, benchmarking, analytics and other business purposes provided that all such data collected, used, and disclosed will not identify the Subscriber or the Users.
6.4. Unless notification is restricted by Law, Trendspek will give written notice to the Subscriber of any unauthorised acquisition, access, use, disclosure or destruction of Subscriber Data (Breach) promptly without undue delay after Trendspek determines that a Breach has occurred.
6.5. Unless prohibited by Law, Trendspek will share information about the nature of the Breach that is reasonably requested by the Subscriber to enable the Subscriber to notify affected persons and Government Agencies.
6.6. The Subscriber has sole control over the content of the Subscriber Data that it enters into the Platform and is responsible for determining whether to notify impacted individuals and the applicable Government Agencies and for providing such notice.
6.7. Subscriber consents to Trendspek sharing Subscriber Data with a Trendspek Provider if required for the purposes of enabling the Platform functionality to which the Subscriber has Subscribed.
6.8. Trendspek must:
- comply with all applicable Privacy Laws (and such other data protection laws and codes of conduct) as may be in force from time to time which regulate the collection, storage, use and disclosure of Subscriber Data;
- not cause the Subscriber to be in breach of applicable Privacy Laws (and such other data protection laws and codes of conduct);
- not collect or use any Subscriber Data other than for the purpose of performing activities contemplated under these terms and conditions; and
- restrict access to any Data to such of its personnel who need to access the Data to fulfil purposes contemplated under these terms and conditions.
7.1. Each party represents to the other party that each of the following statements is true and accurate at the date of the applicable Proposal:
- it is validly existing under the laws of its place of incorporation or registration;
- it has the power to enter into and perform its obligations under these terms and conditions;
- it has taken all necessary action to authorise its entry into and performance of these terms and conditions; and
- the performance by it of its obligations under these terms and conditions will not result in:
- a breach of, or constitute a default under, any agreement, arrangement, constitutional document or encumbrance to which it is party or by which it is bound; or
- a breach of any law or proposal, judgment or decree of any court, Government Agency or regulatory body.
7.2. Each party represents that it is not named on any government list of persons or entities prohibited from receiving exports. Further, Trendspek reserves the right to limit access to the Platform if a Subscriber is found to be in breach of any international trade restrictions.
7.3. The Subscriber represents that it is acquiring the right to access and use the Platform for business purposes and is not dealing with Trendspek as a consumer.
8. Intellectual Property
8.1. Trendspek retains, and the Subscriber acquires no, title, copyright or other proprietary or intellectual rights in or to:
- the Platform;
- any improvements that occur in respect of presentation or method within the Platform as a result of the Subscription;
- any improvements that occur in respect of any algorithm that underlies the operation of the Platform, as a result of the algorithm processing Subscriber Data.
8.2. The Subscriber grants to Trendspek a perpetual royalty-free, non-exclusive, transferable worldwide licence to reproduce, use, process, transfer and store Platform Data for the purpose of enabling and developing current and future Platform functionality.
8.3. The Subscriber will retain ownership in Subscriber Data.
8.4. The Subscriber must not:
- translate or adapt the Platform for any purpose nor create derivative works based on the Platform;
- decompile, reverse engineer or dissemble the Platform; and/or
- transfer or distribute (whether by rental, sale, licence, loan or otherwise) all or any part of the Platform to any other person.
9.1. Each party (as a receiver of Confidential Information from the disclosing party) undertakes in relation to that Confidential Information to keep that Confidential Information confidential, not to disclose it to third parties without the disclosing party’s written consent and to use that Confidential Information only for the purposes contemplated under these terms and conditions.
9.2. A receiving party may disclose the Confidential Information disclosed to it by the disclosing party to its officers and employees who have a specific need to know the Confidential Information for the purposes contemplated under these terms and conditions. The receiving party will remain liable to the disclosing party for any unauthorised disclosure of the Confidential Information by its officers and employees.
9.3. A receiving party may disclose the Confidential Information to the extent required by law, any applicable accounting standards, the rules of any stock exchange or order by any court provided the receiving party (where practicable):
- notifies the disclosing party as soon as possible after it becomes aware that it may be required to disclose Confidential Information;
- consults with the disclosing party with a view to agreeing the form, content, timing and manner of disclosure, including taking into account any actual basis that the disclosing party may have to prevent or restrict disclosure; and
- gives all reasonable assistance and co-operation the disclosing party considers necessary to ensure that as far as possible the extent of disclosure of the Confidential Information is strictly limited to that required.
10.1. Trendspek will maintain during the Term:
- Professional Indemnity Insurance - which also includes cyber-liability insurance for financial losses arising from destruction or corruption of data, including but not limited to privacy and data security breaches, virus transmission, unauthorised access, denial of service and loss of income from network security failures;
- Workers Compensation Insurance - covering Trendspek’s employees pursuant to applicable Laws, and at the maximum limits statutorily required.
10.2. Upon request, Trendspek will promptly provide to the Subscriber a certificate evidencing the coverages described in clause 10.1.
11. Excusable Events
11.1. Trendspek will not be liable or responsible to the Subscriber, and is not in breach of these terms and conditions, as a result of any failure or delay on Trendspek’s part in fulfilling or performing any term of these terms and conditions when and to the extent such failure or delay is caused by or results from acts beyond the Trendspek’s reasonable control (each an Excusable Event).
11.2. An Excusable Event includes without limitation: strikes, lock-outs or other industrial disputes (whether involving the workforce of Trendspek or a third party), trespassing, sabotage, theft or other criminal acts, cyber-attacks, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions.
11.3. If an Excusable Event occurs, Trendspek will use reasonable efforts to mitigate against the effects of such Excusable Event on the Subscriber.
12.1. Terms, conditions, warranties and guarantees implied by Law, which cannot be excluded, restricted or modified, apply to these terms and conditions to the extent required by that Law.
12.2. Trendspek excludes, to the extent permitted by Law, all other terms, conditions, warranties and guarantees which might be implied into these terms and conditions.
12.3. The total and aggregate liability of Trendspek and Trendspek Providers for loss suffered or sustained by the Subscriber in connection with the activities under these terms and conditions:
- whether arising as a result of breach of contract, in tort (including negligence) or under statute; and
- whether or not arising pursuant to an indemnity in these terms and conditions,
- in those cases where the Law (including the Australian Consumer Law) restricts Trendspek’s ability to limit its liability to:
- supplying its services again; or
- the payment of the cost of having those services supplied again; and
- in all other cases to the Limitation Amount.
12.4. The Subscriber agrees that it does not rely on any representation, warranty or other provision made by Trendspek or on its behalf which is not expressly stated in these terms.
12.5. Further, the data, analysis and other information provided by Trendspek as part of the Subscriber’s Subscription:
- may be subject to change by Trendspek or Trendspek Providers from time to time.
- is provided “as is” and to the extent permitted by law, is provided without warranty of any kind, expressed or implied, including (but not limited to) any implied warranties of merchantability, fitness for any particular purpose, or non-infringement.
- may include errors or inaccuracies.
- is not to be interpreted as implying any negative inferences, about entities or subjects of Subscriber Data referred to within the Platform, merely due to their inclusion of a function of the Platform.
12.6. The Subscriber is solely responsible for maintaining backup copies of Subscriber Data. Trendspek will not be liable for any loss of Subscriber Data.
12.7. Trendspek and Trendspek Providers will not accept responsibility for any Loss that is or may be incurred as a result of any error, misrepresentation and or omission that is, was, or may be contained in data, analysis and other information provided as part of the Subscriber’s Subscription at any time.
12.8. Neither party is liable to the other for any loss suffered by the other party that is an Indirect Loss.
In this clause Indirect Loss means Losses which do not arise naturally (that is, according to the usual course of things) from the relevant breach of these terms and conditions (including loss of profits or revenue, loss of goodwill or reputation, loss of anticipated benefits or savings, loss of any prospect or business opportunity, loss of production or other business interruption loss.
13.1. The Subscriber indemnifies and holds harmless Trendspek, Trendspek Providers, their respective Affiliates and their respective officers, directors, employees, representatives, agents, successors and assigns from and against any and all Loss arising from any:
- investigation by any Government Agency;
- internal investigation; and/or
- civil, legislative, administrative, regulatory or criminal proceeding(s),
commenced or asserted against Trendspek arising from, related to or in connection with:
- any act or omission by the Subscriber or anyone acting on the Subscriber’s behalf that violates any applicable Law; and
- any breach by the Subscriber (or anyone acting on its behalf) of any provision of these terms and conditions.
13.2. Trendspek will indemnify and defend the Subscriber, its respective officers, directors, employees, representatives, agents, successors and assigns against any Claim that alleges the Platform infringes the Intellectual Property Rights of any third party.
13.3. If Trendspek reasonably believes that the Subscriber’s use of the Platform is likely to be prevented or it is prevented by any Claim of infringement then Trendspek may, at its expense and in its sole discretion:
- procure for the Subscriber the right to continue using the Platform;
- replace the Platform with another solution having substantially equivalent functions that are not subject to any Claims of infringement; or
- modify the Platform so that there is no longer any infringement, provided that such modification does not materially and adversely affect the functional capabilities of the Platform.
If (a), (b) and (c) above are not available on commercially reasonable terms in Trendspek’s judgment, Trendspek may terminate the Subscription and refund to the Subscriber the fees paid by the Subscriber covering the remaining portion of the applicable Term after the date of termination.
The obligations of Trendspek under this clause do not apply:
- to the extent the Claim arises in connection with any unauthorised use of the Platform, or use that is not in compliance with any applicable Laws and/or Documentation; or
- any Claims arising as a result of the content of Subscriber Data.
13.4. Subject to clause 13.3, the Subscriber will:
- indemnify defend Trendspek, its officers, directors, and employees against any Claim that arises from Subscriber Data or that relates to a dispute between the Subscriber and its suppliers; and
- pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs, or reasonable attorneys' fees, each to the extent payable to a third party, to the extent arising from such Claims.
13.5. Each party’s indemnity obligations under this clause are subject to the following:
- the indemnified party must promptly notify the indemnifier in writing of any Claims;
- the indemnifier will have sole control of the defence and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that require the indemnified party to admit any liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld, delayed or conditioned); and
- the indemnified party must co-operate fully to the extent necessary at the indemnifier’s cost in such defence and settlement.
14.1. Trendspek may terminate a Subscription by written notice to the Subscriber (such notice to take effect immediately) if one or more of the following events occur:
- Fee(s) that have become payable are not paid in accordance when due and remain unpaid for a period of more than 14 days;
- the Subscriber is in breach of any of its obligations under these terms and conditions; or
- the Subscriber become, or threatens to become, insolvent.
14.2. The Subscriber may only terminate a Subscription by written notice to Trendspek (such Notice to take effect immediately) if one or more of the following events occur:
- Trendspek commits a material breach of these terms and conditions that is capable of remedy, and fails to remedy that breach within 14 days from the date the Subscriber notified Trendspek of the breach; or
- Trendspek becomes, or threatens to become, insolvent.
14.3. Should the Subscriber terminate the Subscription under this clause, Trendspek will be entitled to the prorated Subscription Fee(s) due until the termination date.
15. After Termination
15.1. Notwithstanding the termination of a Subscription the rights and obligations within clauses 7, 8, 9, 10, 12, 13, 15 and 16 will continue and remain enforceable in respect of that Subscription.
15.2. The Subscriber may within 30 days after the date of termination of a Subscription (Transition Period) request a copy of any Subscriber Data held on the Platform. Trendspek does not guarantee Subscriber Data will be available to be provided in its original format.
15.3. At the Subscriber’s request and cost, Trendspek will provide services to facilitate the orderly and complete transfer of the Subscriber Data to the Subscriber (Transition Services), provided that the scope and fees of the Transition Services are mutually agreed in writing prior to commencement of the Transition Services.
For the avoidance of doubt, if the Subscriber elects to receive Transition Services, it must also continue to pay pro-rated Subscription Fees for the use of the Platform during the transition period.
16.1. Any notice given by a party under these terms and conditions must be in writing and delivered or sent by email to the recipient at:
- in the case where Trendspek is the recipient, at: [email protected]; and
- in the case where the Subscriber is the recipient, the address on record in Trendspek’s account information.
16.2. A notice is taken to be duly given and received:
- if delivered – on the date of delivery; or
- if delivered by email – on the Business Day after it is despatched provided that the sender does not receive a message to the effect that the sender is ‘out of office’ or that delivery has failed.
16.3. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, delayed or conditioned).
16.4. Each party must (at its own expense) do all things as any other party asks as may be reasonably required or necessary to give the other party the full benefit of any obligations owed to the other party as expressed in these terms and conditions.
16.5. The Subscriber agrees that Trendspek may use its name and logo for promotion and marketing purposes.
16.6. These terms and conditions constitute the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings, and negotiations on that subject matter.
16.7. These terms and conditions are governed by and are to be construed in accordance with the laws applicable in New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
16.8. Trendspek reserves the right to update these terms and conditions from time to time, including for the purpose of staying up to date with legal requirements or business reasons. When Trendspek make changes, they will be effective immediately. Trendspek will take reasonable steps to inform the Subscriber know about any changes, but the Subscriber should also keep track of whether changes have been made to these terms and conditions by referring to the date of publication at the end of this page. If the Subscriber use the Platform following any amendment to these terms and conditions the Subscriber will be taken to have agreed to comply with the terms and conditions as changed.