1. Acceptance & eligibility
(a)This Terms of Use (Agreement) is between Hockey Stick Advisory Pty Ltd (ABN 60 659 210 894) of Level 2/696 Bourke Street, Melbourne, VIC 3000 (HSA) and the individual or entity (You or Your) that has clicked on the “I agree” button (or similar button or checkbox) with reference to this Agreement (I Agree) that is presented to You prior to accessing the Tool.
(b)This Agreement sets out the terms and conditions under which HSA will provide You with access and use of the Tool. You agree to the terms of this Agreement when You click I Agree.
(c)If you are an individual entering into this Agreement on behalf of your employer or another legal entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such other legal entity to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree to this Agreement on behalf of the employer or legal entity that you represent. If the foregoing sentence is applicable, any references to “You” in this Agreement shall refer to the employer or legal entity that you act on behalf of. If you do not have the legal authority to bind your employer or the applicable legal entity, you must not:(i)click I Agree; and
(ii)access or use the Tool.
(d)You represent and warrant that You are over the age of 18. If You are not over this age, You must not enter into this Agreement nor access nor use the Tool.
(e)Capitalised terms used in this Agreement are defined in the body of this document or otherwise have the meanings given at clause 18.
2. Required information
In order to use the Tool, You must first submit the information required by the Tool.
3. Term
This Agreement commences once you click I Agree and shall remain in effect for the duration of Your use of the Tool (Term) unless terminated earlier in accordance with the terms of this Agreement.
4. Tool
4.1 Licence
Subject to Your compliance with all of Your obligations under this Agreement HSA grants You a worldwide, non-exclusive, royalty-free, non-transferable, revocable, non-sublicensable right to access and use the Tool during the Term solely for Your internal business operations.
4.2 Modification to the Tool
At any time during the Term HSA may, at its absolute discretion, update, upgrade, change or modify the functions or features of the Tool (Update). The terms of this Agreement shall continue to apply to any Update made to the Tool.
4.3 Nature of Output
You acknowledge and agree that the Output:
(a)is merely an indicative analysis based on the information provided by You and certain industry benchmark assumptions set by HSA; and
(b)is for informational purposes only and do not constitute financial, accounting, tax, legal or investment advice.
5. Your Obligations
5.1 General responsibilities
(a)You must:(i)co-operate with HSA in relation to the provision of Your access and use of the Tool; and
(ii)provide HSA in a timely manner with all information reasonably requested by HSA to enable it to provide You with access and use of the Tool. You must take all reasonable steps to ensure that any information provided in accordance with the foregoing sentence is accurate and complete.
(b)HSA is not responsible for any delay or deficiency in providing the Tool if such delay or deficiency results from Your failure to comply with clause 5.1(a).
5.2 Restrictions
You must not, and must not permit any third party to do any of the following:
(a)copy, modify or create derivative works of the Tool, in whole or in part;
(b)rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available the Tool;
(c)access or use the Tool to build or support, directly or indirectly, products or services that are competitive to the Tool;
(d)reverse engineer, disassemble, decompile, decode or adapt any software component of the Tool, in whole or in part;
(e)remove any proprietary notices from the Tool or Documentation; or
(f)use the Tool or Documentation in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law.
6. Warranties
6.1 Mutual warranties
Each Party represents and warrants to the other that:
(a)it has full authority to enter into this Agreement; and
(b)it has, and will maintain throughout the Term, all necessary powers, authority and consents to fully perform its obligations and duties under this Agreement.
6.2 Exclusion of warranty
Subject to clause 6.3, to the maximum extent permitted by law, HSA does not make any warranties for the Tool, Output and Documentation. For the avoidance of doubt, HSA:
(a)disclaims all implied warranties, including any implied warranty of merchantability, satisfactory quality or fitness for a particular purpose;
(b)provides the Tool, Output and Documentation on an “as is” and “as available” basis; and
(c)does not warrant that:(i)the Tool will perform error-free or uninterrupted;
(ii)the Tool will be compatible with any hardware or software;
(iii)HSA will correct any errors; or
(iv)the Tool, Output or Documentation will meet Your requirements or expectations.
6.3 Australian Consumer Law
(a)Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of HSA in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or services. For the purposes of this clause 6.3, “goods” and “services” have the meanings given under the Australian Consumer Law.
(b)If HSA is liable to You in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 the Australian Consumer Law that cannot be excluded, HSA's total liability to You for that failure is limited to, at HSA's option:(i)in the case of services, the resupply of the services or the payment of the cost of resupply; and
(ii)in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
7. Confidential Information
(a)Subject to clause 7(b), HSA must keep Confidential Information secret, and must not disclose Confidential Information to any person, except to:(i)HSA's employees, officers and agents who require access to it for the purposes of this Agreement; and
(ii)HSA's professional advisers,
provided that they are informed of, and comply with, the same obligations of confidentiality regarding that Confidential Information as specified under this clause 7(a). (b)Notwithstanding clause 7(a), HSA may disclose Confidential Information:(i)if a disclosure is required by Law, provided that HSA must first notify You of the disclosure and You may take action to object to that disclosure; or
(ii)to the extent that such disclosure is authorised by this Agreement or is necessary for HSA to exercise and perform its rights and obligations under this Agreement.
8. Privacy
(a)You must comply with Your obligations under any applicable Privacy Laws in connection with this Agreement.
(b)You must:(i)make all necessary notifications required by applicable Privacy Laws to; and
(ii)obtain all necessary consents required by applicable Privacy Laws from,
the individuals whose Personal Information You disclose to HSA in the course of this Agreement to enable to HSA to lawfully use the Personal Information in order to exercise and perform its rights and obligations under this Agreement. (c)You acknowledge that HSA is reliant on You for direction as to the extent to which HSA is entitled to use Personal Information disclosed to it in the course of, and for the purpose of, this Agreement.
9. Customer Data
9.1 Your grant of rights
(a)You grant to HSA:(i)a non-exclusive, royalty-free, worldwide right to use, reproduce, distribute, modify, develop, process, publish, disclose and transmit Customer Data as is necessary for HSA to provide You with access and use of the Tool in accordance with this Agreement; and
(ii)a non-exclusive, royalty-free, worldwide, perpetual, irrevocable right to use, reproduce, distribute, modify, develop, process, publish, disclose, transmit and display Customer Data incorporated within the Aggregated Data.
(b)You acknowledge that the Tool relies on systems, networks and facilities supplied by third parties. HSA may supply Customer Data to its third-party service providers to enable HSA to provide the Tool and to exercise its rights under this Agreement.
9.2 Customer data warranties
You represent and warrant that:
(a)the Customer Data does not, and will not, infringe upon the Intellectual Property Rights of any third party;
(b)You have secured all the necessary rights and consents in the Customer Data as may be necessary for You to grant the rights pursuant to this Agreement; and
(c)the Customer Data complies with all applicable Laws.
10. Intellectual Property
(a)HSA and its licensors retain all ownership of, and all Intellectual Property Rights in, the Tool, Output and Documentation.
(b)As between You and HSA, You and your licensors retain all ownership of, and all Intellectual Property Rights in, the Customer Data.
(c)Subject to Your compliance with all of Your obligations under this Agreement, HSA grants You a royalty-free, perpetual, non-exclusive, non-transferable, and non-sublicensable right to use the Documentation solely for Your internal business operations.
11. Aggregated Data
(a)Notwithstanding anything to the contrary in this Agreement, HSA may do any of the following:(i)collect and compile data, information and statistics in aggregated and anonymised form based on Customer Data (Aggregated Data);
(ii)make Aggregated Data available to any third party or make it publicly available in any manner provided that such Aggregated Data does not identify You; and
(iii)use Aggregated Data in any manner and for any purpose provided that such Aggregated Data does not identify You.
(b)HSA retains all right, title, interest and Intellectual Property Rights in the Aggregated Data.
12. Feedback
(a)You acknowledge and agree that HSA is free to use, without any attribution or compensation to any entity, any Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
(b)You hereby assign to HSA all of Your right, title and interest in and to any ideas, know-how, concepts, techniques or other Intellectual Property Rights contained in any Feedback.
13. Indemnification
Except to the extent caused or contributed to by HSA's negligent act or omission, HSA's wilful misconduct or HSA's breach of this Agreement, You indemnify and holds harmless HSA from and against all Loss incurred or sustained by HSA, or for which HSA may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill) that is caused by, in connection with, or as a result of:
(a)Your breach of clause 9.2(a), 9.2(b) or 9.2(c) (customer data warranties); or
(b)Your infringement of the Intellectual Property Rights of HSA or its licensors.
14. Liability
(a)Except for Your indemnification obligations pursuant to clauses 13, to the maximum extent permitted by law, in no event shall a Party or its Related Bodies Corporate be liable to the other Party for any special, indirect or consequential loss arising under, or in connection with, this Agreement including any:(i)loss of profits;
(ii)loss of sales or business;
(iii)loss of production;
(iv)loss of agreements or contracts;
(v)loss of business opportunity;
(vi)loss of anticipated savings;
(vii)loss of or damage to goodwill;
(viii)loss of reputation;
(ix)loss of data; or
(x)loss of use or corruption of software, data or information.
(b)Subject to clause 6.3 and clause 14(a) and except for:(i)Your indemnification obligations pursuant to clauses 13;
(ii)Your breach of clause 5.2;
(iii)fraud committed by a Party,
to the maximum extent permitted by law, the aggregate liability of a Party (and its Related Bodies Corporate) to the other Party in respect of any Loss arising under, or in connection with, this Agreement whether in contract, tort, or otherwise shall not exceed an amount equal to $10. 15. Termination
15.1 Termination for convenience
Either Party may immediately terminate this Agreement without cause by providing written notice to the other Party.
15.2 Consequences of termination
(a)Subject to clause 15.2(b), on expiry of the Term or earlier termination of this Agreement pursuant to clause 15.1:(i)HSA immediately ceases to have any further obligations to provide You with access and use of the Tool; and
(ii)You must immediately cease all access and use of the Tool.
(b)Any expiry or termination of this Agreement does not affect:(i)any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of expiry or termination; and
(ii)the provisions specified in clause 17.1 which survive termination.
16. Dispute resolution
(a)A Party claiming that a dispute has arisen in connection with this Agreement (Dispute) must notify the other Party in writing by giving details of the Dispute (Dispute Notice).
(b)The Parties must, prior to commencing legal proceedings, attempt to resolve the Dispute by convening a meeting (Meeting) within 21 days of the date of receipt of Dispute Notice between director-level representatives appointed by each Party to discuss the possible means and terms of a resolution. If a Party fails to attend the Meeting, the other Party may commence legal proceedings.
(c)Nothing in this clause 16 will limit a Party's rights to seek interim injunctive relief in a court of law.
17. Other Terms
17.1 Survival
The following clauses of this Agreement survive termination or expiry of this Agreement; clause 7 (confidential information), clause 8 (privacy), clause 9.1(a)(ii) (your grant of rights), clause 10(c) (intellectual property), clause 11 (aggregated data), clause 13 (indemnification) clause 14 (liability), clause 15.2 (consequences of termination), clause 16 (dispute resolution), clause 17 (other terms) and clause 18 (definitions).
17.2 Interpretation
(a)Nothing in this Agreement is to be interpreted against a Party solely on the ground that the Party prepared this Agreement or a relevant part of it.
(b)The following rules apply to interpreting this Agreement:(i)Headings are for convenience only and do not affect interpretation.
(ii)Mentioning anything after includes, including, or similar expressions, does not limit what else might be included.
(iii)The singular includes the plural, and the converse also applies.
(iv)If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(v)A reference to legislation or to a provision of legislation includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(vi)The singular includes the plural, and the converse also applies.
(vii)A reference to dollars and $ is to Australian currency.
17.3 Subcontractors
HSA may at its discretion appoint or engage any subcontractor in connection with the performance of its obligations under this Agreement (including the provision of the Tool).
17.4 Assignment
(a)Neither Party may novate, assign or transfer any of its rights and/or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, HSA may assign or novate any of its rights and/or obligations under this Agreement to:(i)a Related Body Corporate;
(ii)an entity that acquires all or substantially all of HSA's business or assets; or
(iii)an entity that acquires 50% or more of HSA's voting share capital.
(b)You must execute and deliver any further documents and do all acts and things as may be reasonably required by HSA to give effect to an assignment or novation pursuant to this clause 17.4.
17.5 Relationship
The relationship between the Parties under this Agreement is that of independent contractors. This Agreement does not create any joint venture, partnership, agency or employment relationship between the Parties.
17.6 Notices
(a)Unless specified otherwise, a notice, consent, waiver or other communication (notice) in connection with this Agreement must be in writing and must be given by email to the receiving Party as follows:HSA: revenuegap-notices@hockeystickadvisory.com
You: the email address that You provided to HSA prior to accessing the Tool
(b)A notice is regarded as given and received on the next business day after the time it is sent (as recorded on the device from which the sender sent the notice) unless the sender receives an automated system message that the email has not been delivered.
17.7 No waiver
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless it is made in writing.
17.8 No reliance
No Party has relied on any statement, representation, assurance or warranty made or given by any other Party, except as expressly set out in this Agreement.
17.9 Entire agreement
This Agreement embodies the entire agreement between the Parties with respect to its subject matter and supersedes any prior negotiation, arrangement, understanding or agreement with respect to such subject matter.
17.10 Governing law
This Agreement is governed by the substantive and procedural laws of the State of Victoria, Australia and the Parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Victoria, Australia in any dispute relating to this Agreement.
17.11 Amendment
This Agreement may only be amended by another agreement or deed executed by all of the Parties.
17.12 Severability
If anything in this Agreement is unenforceable, illegal or void, then it is severed and the rest of this Agreement remains in force.
18. Definitions
The following definitions apply:
Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information means any information disclosed by You to HSA in the course of this Agreement which is confidential or proprietary in nature including: (a) Customer Data; and (b) information relating to Your operations, processes, plans, know-how, designs, trade secrets, market opportunities and customer lists. Confidential Information does not include information that: (a) is in the public domain (unless it entered the public domain through breach of confidentiality by HSA); (b) is already known by HSA at the time of disclosure and has not been obtained by HSA either directly or indirectly from You; or (c) is obtained lawfully from a third party without any restriction on the disclosure.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Data means all data (including Personal Information), text, information, images, audio, video, photographs, financial information, and other content and material in any format that is uploaded, submitted, inputted or otherwise transmitted by You to the Tool. Customer Data does not include Aggregated Data.
Documentation means any of HSA's guides, reports, analyses, benchmarks, Output and other documents relating to the Tool that are provided by HSA to You either electronically or in hard copy form.
Feedback means any communications or materials provided by You to HSA by mail, email, telephone or otherwise, suggesting or recommending changes to the Tool, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions or the like.
Intellectual Property Rights means all present and future intellectual property or other proprietary rights including copyright, registered and unregistered trademarks, designs, patents and any rights in respect of inventions, circuit layouts, computer programs, business or domain names, know how, trade secrets, arising anywhere in the world and whether registered or unregistered and includes any moral rights.
Law means any statute, regulation or other statutory provision.
Loss means any loss, damage, liability, penalty, charge, claim, expense or cost (including legal fees) of any nature or kind.
Output means the Tool's analysis of an organisation's potential partnership sales channel revenue gap relative to industry benchmarks.
Party means a party to this Agreement and “Parties” means both of them.
Personal Information means the same meaning as under the Privacy Laws.
Privacy Laws means the Privacy Act 1988 (Cth) (including the Australian Privacy Principles) as amended from time to time, and any other equivalent legislation, regulations, binding principles, industry codes and guidelines or ancillary regulations relating to privacy or the handling of Personal Information to which You are subject by Law.
Related Body Corporate has the same meaning as under the Corporations Act. “Related Bodies Corporate” is to be interpreted accordingly.
Tool means HSA's web-based software available at the Website (as amended, updated, altered, modified or enhanced from time to time) that provides organisations with the Output.
Website means https://revenuegap.hockeystickai.com/
