These Terms of Service ("Terms") describe your rights and responsibilities as a subscriber of our Subscription Services. These Terms are between you and Thira Analytics Pty Ltd (ABN 78 169 339 100) ("Thira", "we" or "us"). " You" means either you individually or the entity you represent in accepting these Terms. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you do not agree with these Terms you must not subscribe and you must cease using any Subscription Services.
1. Subscription Services
1.1 Your access to the Subscription Services.During the applicable Subscription Term, you (and your Authorised Users) may access and use the Subscription Services via the Website in accordance with these Terms, the nominated subscription plan and the Documentation. The rights granted to you in this clause are non-exclusive, non-sublicensable and non-transferable. It does not grant you any ownership rights nor any other right or licence of any kind except as expressly set out above including, without limitation, any right to obtain possession of any source code, data or other technical materials in relation to the Subscription Services.
1.2 Authorised Users.Access to and use of the Subscription Service (including any enabled Interactives) is restricted to the speciﬁed number of individual Authorised Users permitted in your subscription plan. You agree and acknowledge that Authorised User login details will only be used by the permitted number of Authorised Users. You further agree and acknowledge that an Authorised User login is not to be shared or used by individuals that are not Authorised Users of the Subscription Service. You and your Authorised Users are responsible for maintaining the conﬁdentiality of all Authorised User login information for your account. As between you and us, you are responsible for ensuring that Authorised Users comply with these Terms and applicable Documentation when using the Subscription Services and ensuring that Your Data is and remains compliant with all applicable laws.
1.3 Limited Support.You acknowledge that during the Subscription Term we may provide you with limited free support in respect of the Subscription Services. This may involve limited telephone or email support in relation to configuration and use of the Subscription Services. If we provide such support it will be provided on a discretionary and reasonable efforts basis only (any will not give rise to any obligation to provide further support on any further occasion). You may also be able to purchase an enhanced support offering from us but, where applicable, such enhanced support will be governed by a separate contract between you and us.
1.4 Restrictions.Except as otherwise expressly permitted in these Terms, you will not (and you will ensure Authorised Users do not): (a) reproduce, modify, adapt or create derivative works of the Subscription Services; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Subscription Services to a third party; (c) use the Subscription Services for the benefit of any third party; (d) incorporate any Subscription Services into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Subscription Services intended to limit your use (for the avoidance of doubt, you must not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access pursuant to the relevant subscription plan); (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Subscription Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Subscription Service; (h) use the Subscription Services for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Subscription Services; or (j) encourage or assist any third party to do any of the foregoing.
2. Term and Termination
2.1 Initial term and renewal.These Terms will be effective on the date of subscribing and will continue for an initial period as applicable to your nominated subscription plan. These Terms will automatically renew thereafter for equivalent periods unless either party terminates your subscription in accordance with these Terms (the initial period and each successive renewal period being the " Subscription Term").
2.2 AUTO-RENEWAL AND CANCELLATION.FOR ALL SUBSCRIPTION PLANS EXCEPT THOSE RECURRING ON A MONTHLY BASIS, WE WILL NOTIFY YOU BY EMAIL PRIOR TO THE END OF YOUR SUBSCRIPTION TERM OF RENEWAL, INCLUDING THE APPLICABLE SUBSCRIPTION FEES. REGARDLESS OF SUBSCRIPTION PLAN, YOU MAY ELECT TO OPT-OUT OF AUTOMATIC RENEWAL AT ANY TIME DURING THE SUBSCRIPTION TERM BY FOLLOWING THE PROCESSES SET OUT AT catem.be or breakeven.app.
2.3 Termination for Cause.Either party may terminate these Terms for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching party's receipt of such written notice; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the beneﬁt of creditors. If these Terms are terminated by you in accordance with this clause, we will refund you any prepaid fees in respect of the unused remainder of the Subscription Term.
2.4 Export of Your Data.For a limited period of thirty (30) days after the effective date of termination or expiration of these Terms, upon Your request, we will make Your Data available to you for export or download as provided in the Documentation. Thereafter, we will have no obligation to maintain or provide any of Your Data, and, as provided in the Documentation, we will, unless prohibited by law or legal order, delete Your Data from our relevant Subscription Service in accordance with our internal policies.
3. Subscription Fees and billing
3.1 Processing your payment.As part of the subscription process, you will need to provide us or our third party payment processor with valid, up-to-date and complete payment details and any other relevant valid, up-to-date and complete contact and billing details and, you hereby authorise us or our third party payment processor to process such payment: (a) for the subscription fees payable in respect of the relevant initial period; and (b) where renewing, at the end of each Subscription Term. If you fail to pay your subscription fees within five (5) business days of our notice to you that a payment is delinquent, we may suspend or terminate access to and use of such Subscription Services. You acknowledge that where payments are processed by Stripe, in submitting your payment information you agree to Stripe's terms and conditions
3.2 Currency and taxes.All subscription fees will be charged in Australian Dollars. You are responsible for payment of all applicable taxes.
3.3 Changes.The subscription fees are subject to change upon 30 days' notice from us, given by email or posted to the Website. Such change will not impact the subscription fees payable by you in respect of your current pre-paid Subscription Term but will apply in respect of any subsequent renewal. If you do not wish to continue your subscription at the revised price, you may cancel your subscription before the end of your current Subscription Term.
3.4 No Refunds.Except for your termination rights under clauses 2.3 or 3.3, if you elect to terminate your subscription to the Subscription Service prior to the end of your then current Subscription Term, no refunds or credits for subscription fees or payments will be provided to you. You may be entitled to a pro rata refund under applicable law and nothing in these Terms affects your rights under applicable law.
4. Our Intellectual Property
4.1 IP Rights in the Subscription Services and Feedback.Subscription Services are made available on a limited access basis, and no ownership right is conveyed to you. We and our licensors have and retain all right, title and interest, including all Intellectual Property Rights, in and to the Subscription Services (and any underlying technology or content on our Website). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise and you grant us a perpetual and irrevocable licence to use and exploit any such Feedback.
4.2 Collaboration.If we collaborate with you in relation to the implementing any new Interactive (or new functionality within an existing Interactive), any contributions you make to such Interactives (if any) will constitute Feedback and this clause 4 will apply in respect of the relevant Interactive unless you have entered into a separate written development contract with us that expressly provides otherwise.
4.3 IPR Warranty.We warrant that the Subscription Services, as provided by us and used strictly in accordance with these Terms and Documentation, do not to the best of our knowledge infringe the Intellectual Property Rights of any third party. For clarification, this warranty does not apply to any of Your Data, including without limitation where it is uploaded to or hosted on the Subscription Services as part of any Interactive or otherwise.
4.4 IPR Indemnity. We will defend you against any claim that your access and use of the Subscription Services strictly in accordance with these Terms and Documentation infringes any third party's Intellectual Property Rights and will indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that: (a) you give us prompt notice of any such claim; (b) you provide reasonable co-operation to us in the defence and settlement of such claim, at your expense; and (c) we are given sole authority to defend or settle the claim. This indemnity will not apply if the alleged infringement is based on: (a) Your Data; (b) a modification of the Subscription Services by anyone other than us; (c) your use (or your Authorised Users use) of the Subscription Services in a manner contrary to the Documentation or any instructions given to you by us; or (c) your continued use of the Subscription Services after notice of the alleged or actual infringement was provided to you.
4.5 Sole remedy.In the defence or settlement of any claim, we may procure the right for you to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if such remedies are not reasonably available, immediately terminate your subscription on notice and provide you with a pro rata refund of any pre-paid subscription fees for any unused period of your subscription. This clause states your sole and exclusive rights and remedies, and our (including our employees, agents and sub-contractors) entire obligations and liability, for infringement of any Intellectual Property Rights.
6. Your Data
6.1 Hosting of Your Data.Title to, and all Intellectual Property Rights in, Your Data remain your property. However, your continued access to Your Data as hosted on the Subscription Service is contingent on full payment of the applicable subscription fees and an active subscription plan. You must maintain copies of all of Your Data that is uploaded. We implement our own policies and procedures to prevent data loss, but we do not make any guarantees that there will be no loss of Your Data or any other data in relation to the Subscription Services. We expressly exclude liability for any loss of Your Data (and any other data) no matter how caused.
6.2 Your content obligations.You acknowledge that you will not: (a) publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information; or (b) upload, or otherwise make available, files that contain images, photographs, software or other material protected by Intellectual Property Rights, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
6.3 IPR indemnity. You indemnify us against any claim, action, proceeding or demand by a third party arising from or in connection with our hosting and use of Your Data in connection with the Subscription Services, including but not limited to any claim alleging that Your Data or our handling or processing of Your Data infringes the Intellectual Property Rights of a third party, including without limitation all liability, damages, losses, costs (including without limitation court costs and legal fees), charges, outgoings, payments and expenses suffered or incurred in connection with any such claim.
7. Changes to Subscription Services
You acknowledge that the Subscription Services are on-line and subscription-based in nature, and that in order to provide improved customer experience we may from time to time make changes to the Subscription Services, and we may update the applicable Documentation accordingly. We can discontinue any part or feature of any Subscription Services for any reason at any time without liability to you. Where possible will provide you with commercially reasonable advance notice of any deprecation of any material feature or functionality. If we provide you with this type of notice, you may either cancel auto-renewal to end your subscription at the end of the current Subscription Term or elect to terminate your subscription earlier by providing us with written notice. Where you elect to terminate your subscription earlier than the end of your Subscription Term pursuant to this clause you will be entitled to a pro-rata refund of your pre-paid subscription fees for any unused period of the Subscription Term in which we provided you with such notice for period where the material deprecation will apply. This limited right to terminate will cease at the end of the then current Subscription Term.
8. Disclaimer and liability
8.1 ACKNOWLEDGEMENT. YOU ACKNOWLEDGE THAT YOUR USE OF THE SUBSCRIPTION SERVICES IS AT YOUR SOLE RISK. THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DO NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, ACCURATE OR VIRUS FREE. WE ARE NOT RESPONSIBLE FOR DELAYS, DISRUPTIONS OR OTHER FAULTS IN THE SUBSCRIPTION SERVICES CAUSED BY FACTORS BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO PROBLEMS WITH THE PUBLIC INTERNET OR YOUR COMPUTER SYSTEMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY OF YOUR EQUIPMENT OR SOFTWARE RESULTING FROM YOUR USE OF THE SUBSCRIPTION SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT THE SUBSCRIPTION SERVICES AND ANY INTERACTIVES (AS APPLICABLE) MEET THE NEEDS OF YOU OR YOUR ORGANISATION.
8.2 NO IMPLIED WARRANTIES.SUBJECT TO THE TERMS OF THIS CLAUSE 8, WE EXCLUDE ALL RIGHTS, REPRESENTATIONS, GUARANTEES, CONDITIONS, WARRANTIES, UNDERTAKINGS, REMEDIES OR OTHER TERMS IN RELATION TO THE SUBSCRIPTION SERVICES THAT ARE NO EXPRESSLY SET OUT IN THESE TERMS TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF WE ARE LIABLE TO YOU UNDER AUSTRALIAN CONSUMER LAW IN RELATION TO A FAILURE TO COMPLY WITH A GUARANTEE THAT CANNOT BE EXCLUDED, WE LIMIT OUR LIABILITY TO THE RESUPPLY OF THE SERVICES OR THE PAYMENT OF THE COST OF RESUPPLY.
8.3 MAXIMUM LIABILITY. SUBJECT TO THIS CLAUSE 8, OUR MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS UNDER OR IN CONNECTION WITH THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), IN EQUITY, UNDER STATUTE OR ON ANY OTHER BASIS, IS LIMITED TO AN AMOUNT EQUAL TO THE AMOUNTS PAID BY YOU UNDER THESE TERMS. WE ARE NOT LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR FOR ANY LOSS OF PROFIT, LOSS OF REVENUE OR LOSS/CORRUPTION OF DATA OR SOFTWARE.
8.4 LIABILITY NOT EXCLUDED.NOTHING IN THESE TERMS EXCLUDES OUR LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
9.1 Notices.Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to us must be sent to email@example.com or to any other email address notified by email to you by us. Notices to you will be sent to the email address which you provided when subscribing to the relevant Subscription Service.
9.2 Variation.No variation of these Terms between you and us will be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.3 No assignment.You may not assign or transfer any rights to any other person without our prior written consent.
9.4 No waiver.If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
9.5 Force majeure.Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
9.6 Severability.If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable, it is severed only to the extent that it is invalid or unenforceable and the remainder of these Terms remain binding on the parties.
9.7 Survival and accrued rights.Clauses 1.4, 2.4, 3.4, 4, 6, 8 and 9 survive termination or expiry of these Terms. Termination of these Terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination you will remain liable for any accrued charges and amounts which become due for payment before or after termination.
9.8 Governing law and jurisdiction.These Terms will be governed by the laws of Victoria, Australia. Each party submits to the exclusive jurisdiction of the courts of Victoria, Australia in the event of a dispute arising out of, or in connection with, these Terms.
9.9 Entire agreement.These Terms, and the terms of any other notices or instructions given to you under these terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between you and us relating to the Subscription Services and matters dealt with in these Terms.
Capitalised terms not otherwise defined within these Terms have the following meanings:
"Authorised User" means you and each of your student end users that are provided with access to your instance of the Subscription Services pursuant to your subscription plan as part of an educational program that you are responsible for.
"Feedback" means comments, questions, ideas, suggestions or other feedback relating to the Subscription Services, Interactives or support.
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Interactive" means a module installed or otherwise activated within a Subscription Service that is accessible to you as part of your subscription plan. For the avoidance of doubt, this may include, without limitation, interactive modules such as games, simulations, experiments, activities, interactive diagram tools or interactive explanation tools.
"Subscription Services" means our cloud-based infrastructure, platform and software solutions, including any accessible Interactives and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
"Your Data" means any data, content, code, video, images or other materials of any type that you (including any of your Authorised Users) submit to Subscription Services, excluding Feedback. In this context, "submit" (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Subscription Services. For the avoidance of doubt, this may include, without limitation, questions and answers, written case studies, scenarios, examples, or student instructions, as well as any non-interactive diagrams or exhibits.