Date of last revision: 11th of November 2019
The service is an integration solution which helps businesses move their Data across cloud based, on premise and desktop applications via “Connectors”. The Data can the be used by The User to build customised reports and allows the User to track efficiency of business processes compared to industry averages.
When you access the Website or use the Service, you agree that you have read, understood, and are making an offer to the Operator to be bound by the terms and conditions contained herein. The Offer made by the Subscriber in these terms and conditions apply from the time that the Operator accepts the Subscribers offer by charging their nominated credit card until the Subscriber discontinues access to the Service.
Agreement means the agreement for the supply of goods and/or services by the Operator to the Subscriber including the Contract, any annexures, schedules, terms and conditions and any terms and conditions incorporated, implied or included into the agreement.
Commercial Website means www.profitdiagnostix.com or any website owned by the Operator and promoting the Service.
Connector means a software tool in the Operator’s architecture which transfers a Subscriber’s Data between the Service and the third-party systems.
Data means any record which a User imports to the Service from any third party software that The Service provides a Connector to as described and updated from time to time at the Commercial Website. For example Data could be invoices and Customer records including email addresses and mobile telephone numbers.
Personal Information has the meaning given to that term in the Privacy Act 1988(Cth) as amended from time to time.
Physical Address means any address displayed on the Commercial Website as a physical address of an Operator
Service means the Operators Data synchronisation and business reporting service delivered from its Website.
Subscriber means the person who is responsible for paying for use of the Service.
Subscriber Account means an account created by a Subscriber for the purposes of using the Services.
Support Email Address means firstname.lastname@example.org or any other support email address displayed for support purposes at the Commercial Website.
The Operator means the owner and developer of the service, Bee Village Pty Ltd as Trustee for Bee Village Unit Trust or any party promoting, selling or collecting payment for the Service on behalf of the Operator with explicit permission of the Operator.
User/s means the Subscriber or any other person who has been granted access to the service with a secure user name and password.
Customer means any person who is invoiced by the User or any person who’s personal information is recorded by the User or the User’s agents.
(a) The Operator provider must:
Comply with all laws, regulations and valid directions of any Commonwealth, State or local government authority and with all applicable mandatory or voluntary codes while providing the Services;
Not, whether by act or omission, do anything which will adversely affect the reputation or goodwill of the Subscriber or any of the Subscriber’s products;
Promptly notify the Subscriber if the Operator becomes aware that it has not provided or may not be able to provide any of the Services to the Subscriber in accordance with the Agreement. If the Operator is unable to provide the Services under the Agreement the Operator must provide all assistance and co-operation reasonably requested by the Subscriber to enable services similar to the relevant Services to be provided by a third party or to be performed by the User itself. Notification under this clause 1.2 does not limit any obligations of the Operator under this agreement or otherwise to indemnify the User;
Promptly (within 24 hours) of the termination or expiration of the Agreement for any reasons, deliver up, or return, all property, including, documents, reports and data (data) of the Subscriber in the Operator’s possession, custody or control, to the Subscriber or its nominee in a form as reasonably required by the Subscriber at no additional cost to the Subscriber. If no form is specified by the Subscriber the data must be provided in a form which is readable by humans.
(b) The Operator remains responsible for all acts or omissions of any assignee or sub-contractor of the Operator, and must indemnify the Subscriber for any loss, claim, action, damage, liability, cost, charge, expense, outgoing or payment suffered or incurred by the Subscriber in connection with such acts or omissions or any claim, demand or action which is made or commenced against the Subscriber by any assignee or sub-contractor in respect of or arising out of the assignment of rights or sub-contracting of obligations under this agreement. Any act which results in a change of the entity able to directly or indirectly control the Operator will be deemed to be an assignment of the Agreement.
(c) No forbearance, delay or indulgence by a party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
(d) The Operator agrees that all updates, patches or modifications supplied by it under the Agreement are supplied in accordance with the terms of the Agreement. The Operator acknowledges and agrees that it will not require any amendment to the Agreement before it will provide updates, patches or modifications.
2. Subscriber Account
2.1 Creation of a Subscriber Account
Subscribers agree to create a Subscriber Account to access The Service. In creating and using a Subscriber Account, Subscribers agree:
(a) that they are authorised by the owner of the Data to Syncronise that Data using the Connectors;
(b) not impersonate someone else;
(c) that they are authorised to add User’s and when the Subscriber adds a User the Subscriber is responsible for the actions of Users that the Subscriber has added.
2.2 Account and Password
Users agree to keep any passwords associated with their account confidential. Users are expressly prohibited from sharing their account details with anyone other than the owner or their authorised officer or agent.
2.3 Termination of Subscriber Account
(a) The Operator reserves the right to limit, cancel, suspend or terminate a Subscriber Account or revoke access to a User without notice to the Subscriber and without providing a reason if we have reason to believe the Subscriber or User is breaching any of the terms and conditions contained in TOS or are of the opinion that a Subscribers use of their Account may be a breach of a third party’s intellectual property rights or is otherwise illegal.
(b) Subscribers agree not to hold the Operator liable for claims, demands or damages (including actual and consequential losses) of any kind for closing a Subscriber Account where the Subscribers conduct caused us to cancel the Subscriber’s Account.
2.4 Termination by Subscriber
If for any reason, the Subscriber decides not to continue with their use of the Service, they must email the Support Email Address to terminate their account. Termination will be effective three (3) days from The Operator receiving notice of Termination.
2.5 Effect of Termination
(a) On the termination or expiration of the Agreement for any reason:
If requested by the Subscriber, the Software Provider must promptly (within 24 hours) and at its own cost deliver up or return, all property, including, documents, reports and data (data) of the Subscriberin the Operator’s possession, custody or control, to the Subscriber or its nominee in a form as reasonably required by the Subscriber. If no form is specified by the Subscriber the data must be provided in a form which is readable by humans.
The provisions of clauses 1.2(a), 6.2, 8.5 survive the termination or expiration of the Agreement.
3. Subscription Fees
3.1 Pricing Plans
(a) Subscribers agree to pay the fee associated with the selected Service according to the plan that they have selected when creating a Subscriber Account.
(b) The Service does not collect or store credit card information. Subscribers consent to The Operator passing their Credit Card details to its secure third party credit card provider.
3.2 Refund Policy
(a) Refunds are not granted for past use of the Service. Subscriptions can be cancelled to avoid future charges.
4. Operation of the Service
4.1 Fair use and API limits
(a) Subscribers acknowledge that third party providers may influence the way in which The Operator provides the Service. It is up to the Subscriber to ensure that they comply with any restrictions imposed by third parties in using the Connectors.
4.2 Changes to the Service
(a) The Operator may at its sole discretion change, modify, suspend, make improvements to or discontinue any aspect of the Service, temporarily or permanently, at any time. We will endeavour to provide Users with notice if possible.
(b) The Operator will make all reasonable attempts to bring the timing of any outages to Subscribers attention, however Subscriber must be aware that any outage may interfere with their scheduled synchronisations and take appropriate action.
(c) The Operator may make improvements and or changes to the Service at any time without notice. We do not warrant that the information architecture or navigation will not change now or at any time in future.
(d) Further, the use of our Service is contingent on being able to integrate with those third party systems that we connect to. We are not responsible should we be denied access to those third party systems.
(a) The Service may be unavailable from time to time due to maintenance requirements. Under no circumstances will The Operator be liable for any such change, modification, suspension, improvement or discontinuance of the Service performed over periods of maintenence.
4.4 Communications with The Operator
All notices and other communications required under this TOS should be directed to The Operator at the Support Email Address. Notice is deemed given twenty-four (24) hours after the notice is sent. Alternatively, we may give Subscribers notice by mail to the address provided during the Account registration process. In this case, notice is deemed given three (3) days after the date the electronic email is sent.
5. Prohibitions on use of the Service
5.1 Prohibited actions by Subscribers and Users
The Service must not be used in any manner that infringes The Operator’s rights. Users must not:
(a) attempt to reverse engineer or attempt to extract the source code that operates the Service;
(b) transmit any virus, worm or other disabling feature via a Connector; or
5.2 Subscriber warranties
Users represent and warrant in relation to Data that they may upload to the Service that:
(i) they are authorised to upload the Data;
(ii) they are authorised by the business that they represent to create an Account;
(iii) they will not knowingly transmit any worm, virus or other disabling feature to our Website;
(iv) the Data does not represent or indicate any illegal acts;
(v) they agree to the times set for synchronisation of their Data;
(vi) they have complied with The Service’s configuration guide in configuring the Connectors;
(vii) the Data uploaded does not infringe any intellectual property right including, but not limited to, trade marks, service marks or business names (whether registered or unregistered), confidential information, trade secrets and copyright; and
(viii) by providing the information the Subscriber is not breaking any law of any state of Australia or the Country where they are located.
6. Intellectual property
The Operator may be the owner of several common law (or where indicated), registered trade marks which appear on the Service or use any such trademark pursuant to a separate agreement with the owner. Unauthorised use of these trademarks may infringe our intellectual property rights. Subscribers use of the Service grants no right or license to reproduce or otherwise use any The Operator or third-party trademarks owned by systems that we connect to. If Subscribers infringe our rights in this regard we reserve our right to take action.
(b) In using the Service, The Operator may store generic information such as a Subscribers IP Address, cookie information, software and hardware attributes. We keep this information solely for the purpose of providing the Service. This information is not provided to any third party.
(c) Without prejudice to any other clause in this agreement, the Software Provider must comply with the Privacy Act 1988 (Cth)
(d) The Operator shall treat all information or data supplied to it by Users (including information comprised in any computer programs, databases and documentation) as confidential, except to the extent that such information or data becomes public knowledge other than through a breach by the Operator, or is required, by law, to be disclosed. The obligation contained in this clause survives the termination of the Agreement. For the avoidance of doubt information includes but is not limited to the names, addresses and phone numbers of customers, notes and invoices provided by Users.
(e) The Operator may only use the information or data supplied to it by Users to provide the Services or for the development and support of software for the provision of the Services.
(f) At all times the Subscriber remains the owner of all information and data supplied to the Operator by or on behalf of the Subscriber.
(g) The Operator shall ensure that information and Data entered by User’s is kept free from access by unauthorised third parties.
(h) By using the Service, You agree that the Service can access, aggregate and use non-personally identifiable data that the Service has collected from Users. Because one of the main features of the software is to allow Users to benchmark business performance, such benchmarks can only be obtained from aggregated data. This data will in no way identify the User or any other individual stored within the databases of the Service.
The Operator may use this aggregated non-personally identifiable data to:
- assist the Operator to better understand how the User is using the Service,
- provide the User with further information regarding the uses and benefits of the Service,
- enhance small business productivity, including by creating useful business insights from that aggregated data and allowing the User to benchmark the Users business’ performance against that aggregated data, and
- otherwise to improve the Service.
(j) The Operator will take all reasonable steps to protect the security of personal information. The Operator customarily discloses personal information only to service providers who assist The Operator in operating the Service. Users’ personal information will not be disclosed to any other third party, unless such disclosure is required by law or with the User’s consent.
(k) The Service may or may not be hosted in the Subscriber’s jurisdiction. For that reason, The Operator may transfer data on the Service (including all personal information) to the hosting service provider in other countries including but not limited to the United States. Subscribers hereby consent to this transfer.
(l) Users may gain access to, and correct, the personal information The Operator holds about them in certain circumstances. Users can obtain such access, by contacting The Operator on the details set out above.
(m) The Operator takes reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure. Further, The Operator takes all reasonable steps to destroy or permanently de- identify personal information if it is no longer needed.
7. Limitation of liability
(a) Users access the Service at their own risk and are responsible for compliance with the laws of their jurisdiction in addition to those contained herein.
(b) The Operator makes the Service available for Subscribers to use, however we do not assume a duty of care to Subscribers. Subscribers are solely responsible for the Data integrity of the Data held in the Data Hub.
(c) The Operator makes no representation and provides no warranty regarding the quality, accuracy, completeness, merchantability or fitness for purpose of the Connectors to synchronise their Data to.
(d) Whilst we use our best endeavours to ensure that the Service works according to the purpose for which you have subscribed, The Operator does not warrant or represent that the use of the Service will not cause damage to the Data if the Connectors are not configured correctly.
(e) Where any law implies a warranty into these TOS which may not lawfully be excluded, then to the maximum extent permitted by law, our liability for breach of the warranty will at our option be limited to the supply of the Services again, or the payment of the cost of having them supplied again.
(f) Where liability cannot be excluded, any liability incurred in relation to the use of the Service or the Data is limited as provided under the Competition and Consumer Act 2010 (Cth).
(g) Under no circumstances will The Operator be liable for any incidental, special or consequential damages, including damages for loss of business or other profits arising in relation to use of the Service.
8. Miscellaneous provisions
8.1 Cross border Dataflows
No representation or warranty is made that in Subscribing to the Service that Data will not flow out of the Jurisdiction of The Subscriber. The exact location of a Subscriber’s Data will depend on which service has been selected and where the best infrastructure exists to deliver the Service.
8.2 Changes to these Terms of Services
The User is bound by the Agreement as at the date their credentials allowing access were supplied. No variation or amendment of the Agreement will be effective unless in writing and signed by both parties. It is at the Users discretion to print out this agreement at the time that their subscription has started. Should the Subscriber want a signed copy of the original agreement it is the Subscriber’s responsibility to request this.
8.3 Entire agreement
This TOS and any warranties implied by law which are not capable of being excluded or modified amount to the entire agreement between the Subscriber and The Operator. Any contact with The Operator’s Officers, Agents or Authorised Representatives that includes any statements representations, warranties (if any) whether expressed or implied, including any collateral agreement or warranty, with reference to the subject matter or the intentions of either of the parties are merged and otherwise are excluded and cancelled by those contained in this Terms of Service.
By using the Service, Subscribers indemnify The Operator and our respective Officers, Agents and Authorised Representatives against any claim or proceeding that is made, threatened or commenced, and any liability, loss, damage or expense (including reasonable legal costs on a full indemnity basis) that we may incur or suffer as a direct or indirect result of:
(i) a breach of this TOS by the Subscriber;
(ii) an actual or alleged breach by you of any law, legislation, regulation, by-law or code of conduct caused by Data uploaded or downloaded using the Service;
(iii) any claims brought by or on behalf of any third party relating to any act or omission by you, including breach of a third parties copyright or trade mark except to the extent that any such liability, loss, damage or expense is caused or contributed to by The Operator, our respective Officers, Agents or Authorised Representatives.
The Operator indemnifies the Subscriber against any claim or proceeding that is made, threatened or commenced, and any liability, loss, damage or expense (including reasonable legal costs on a full indemnity basis) that the Subscriber suffers as a result of a breach of any third party claim against The Operator for breach of intellectual property rights.
Each party indemnifies and must keep indemnified the other party against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against a party or which the party may pay, sustain or incur as a direct or indirect result of any use or performance of the Services by the other party which infringes the Intellectual property rights of any person or third party.
Because we want to make The User as comfortable as possible that The User’s Data is safe, the Agreement shall be read and construed as best possible in accordance with the laws of the State of where the Subscriber is located and the parties submit to the non-exclusive jurisdiction of the Courts of that State. It is however the Subscribers responsibility to ensure that the Service does not breach any laws of the Subscribers jurisdiction.
8.6 No Agency, Partnership or Joint Venture
The parties to this Agreement contract at arm’s length. Nothing contained herein is to be deemed as creating, giving effect to or otherwise recognising a relationship of partnership, agency, joint venture or other form of relationship between the parties.
If any part of this agreement are found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of the agreement and the severed part will not affect the validity and enforceability of the remaining terms and conditions.
If we do not act in relation to a particular breach by a Subscriber of these Terms and Conditions, this will not be treated as a waiver of The Operator’s right to act with respect to subsequent or similar breaches.