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:
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/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:
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:
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:
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:
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 Background Materials means all Materials which are:
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:
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.
4.1. 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:
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.
5.1. The Subscriber, in the performance of its obligations under these terms and conditions, must ensure the Subscriber and all Users:
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.
6.1. 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:
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:
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:
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.
8.1. Trendspek retains, and the Subscriber acquires no, title, copyright or other proprietary or intellectual rights in or to:
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:
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):
10.1. Trendspek will maintain during the Term:
10.2. Upon request, Trendspek will promptly provide to the Subscriber a certificate evidencing the coverages described in clause 10.1.
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:
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:
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:
commenced or asserted against Trendspek arising from, related to or in connection with:
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:
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:
13.4. Subject to clause 13.3, the Subscriber will:
13.5. Each party’s indemnity obligations under this clause are subject to the following:
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:
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:
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.
15.1. 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:
16.2. A notice is taken to be duly given and received:
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.