Website Terms and Conditions – Oct 2024

This End User Licence Agreement (EULA) is an agreement between the licensor (Pathzz), and you (End User, Client, you, your).

This EULA contains the terms and conditions that govern the End User’s licence to use the Pathzz Platform.

This EULA commences on the date on which it is executed by you (Commencement Date) and continues for the duration of the Term.

Grant of Licence to Pathzz

  • Pathzz grants to the End User a revocable, non-exclusive, non-transferable and non-sublicensable licence to use the Pathzz Platform and create Derivative Materials:
  1. for the duration of the Term;
  2. subject to the Geographical Limits, User Limits and Query Limits;
  • for the Permitted Purpose; and
  1. subject to the remaining terms of this EULA.
    • Your Licence does not grant you the right to access or to utilise the underlying data sets outside of the Pathzz Platform, excluding any data export functionality that have been provided as part of the Pathzz Platform.

Use of Pathzz

  • You must, with respect to your use of the Pathzz Platform:
  1. reference ‘Pathzz’ as the source of any Derivative Materials that you create under this EULA;
  2. only use the Pathzz platform for the Permitted Purpose;
  • not take any steps, or permit others to take any steps, to seek to re-identify any individuals which are the subject of the Pathzz Platform or by using any data contained within the Pathzz Platform;
  1. except as expressly authorised under this EULA, you shall not reproduce, copy, transfer, assign access, reverse engineer, reverse compile or disassemble the Pathzz Platform or any portion thereof;
  2. not sell, sublicence, assign, transfer or otherwise commercially exploit any whole or part of the Pathzz Platform without prior written consent of Pathzz;
  3. not use the Pathzz Platform for any competitive research, or to create a competing or similar service.
  • not copy, record, reproduce, republish, post, broadcast, transmit or make the Pathzz platform available to any other person or authorise or assist anyone else to do so, without prior written consent of Pathzz;
  • destroy all Derivative Materials from your Pathzz Platform at the termination of this EULA; and
  1. comply with all applicable laws associated with the performance of your obligations and exercise of your rights under this EULA including the Privacy Act 1988 (Cth). This obligation to comply with the Privacy Act applies notwithstanding any possible operation of the small business operator exception in section 6C of that Act.
  2. Not to promote your use of the Pathzz Platform or use its name via any media channel without the express consent of Pathzz.
    • You will indemnify Pathzz for any loss arising out of your breach of the obligations set out in clause 3

Payment Terms

  • All Fees are non-contingent, non-transferable, and non-refundable unless specifically stated otherwise in an applicable EULA or Order Form. Invoices are due upon Client’s receipt of the invoice. Invoices not objected to in writing within thirty (30) days of Client’s receipt will be deemed approved.
  • Pathzz will invoice you on or after the Commencement Date. All payments shall be made free and clear of deductions, withholdings, and set-off or credits.
  • All amounts payable are in Australia Dollars unless stated otherwise in an applicable EULA or Order Form, exclusive of any sales, use and other taxes or duties, however designated and you shall be solely responsible for payment of all such taxes, except for those based on the income of Pathzz.

Taxes

Client will be responsible for all applicable taxes (excluding taxes imposed on Pathzz’ s net income) imposed by any taxing authority, whether designated as value-added (VAT), goods and services (GST), sales, use, or other similar taxes (“Transaction Taxes”), now in effect or hereafter imposed, resulting from the Fees. If Client is exempt from Transaction Taxes, Client must inform Pathzz of its exemption and provide to Pathzz complete and proper documentation evidencing the exemption.

Affiliates

Client may purchase services from Pathzz and Pathzz’s Affiliates.  “Affiliates” means any legal entity that, directly or indirectly: (a) is owned or controlled by; (b) owns or controls; or (c) is under common ownership or control with Client or Pathzz respectively.

Service Levels

Pathzz do not represent or warrant that the Pathzz Platform will function in an uninterrupted manner and be available 24 hours a day, 7 days a week.

Pathzz agree that their actions will not cause the Pathzz Platform to be inaccessible to you for more than 5% of Support Hours hours in aggregate over the Term.

Pathzz agree that any updates to Pathzz that causes it to be inaccessible to you during Support Hours are only permitted for up to three (3) consecutive hours and with prior written notice of at least three (3) Business Days provided by email notification.

Intellectual Property

You acknowledge and agree that

  1. all rights, title and interests (including all Intellectual Property Rights) in and to the Pathzz platform will at all times remain owned by Pathzz,
  2. nothing in this EULA is intended to transfer such right, title or interest (including Intellectual Property Rights) to you.
  • Pathzz does not grant you any other license, express or implied, and Pathzz reserves all rights not expressly granted hereunder.
  1. Client retains ownership of all materials, and the intellectual property rights in those materials, provided to Pathzz by or on behalf of Client (“Client Materials”). Subject to Section v below, and upon payment in full of Pathzz’s fees, Client will also own copies of reports and analyses Pathzz delivers to Client under this EULA (“New Materials”).  Client may use the New Materials in the form provided for its internal purposes only; Client may not use the New Materials for any other purpose or permit any other person, firm or entity to use the New Materials.
  2. The performance of the Services and creation of the New Materials will require the use of Pathzz Materials . “Pathzz Materials” include methodologies, preexisting programs, instruments, models, proprietary information, patents, registered and unregistered trademarks, trade names, trade secrets, copyrights, prototypes, inventions, algorithms, designs, compilations, computer software programs, tools, databases, evaluation guides, report forms, scoring guides, scoring algorithms, scoring instructions, scoring software and norms.  Pathzz Materials include both Pathzz’s preexisting intellectual property and any modifications, derivatives or improvements it makes thereto, and any intellectual property it creates independently of its performance under this EULA.  Pathzz may customize, modify, translate, or expand Pathzz Materials to apply to Client’s unique requirements (collectively, a “Customization”).  Any Customization will be Pathzz Materials exclusive of any Client Materials included therein.  Pathzz owns Pathzz Materials at all times, and reserves all rights not expressly granted under this EULA.  Except as expressly provided in this EULA, no license to Pathzz Materials, including a license to copy, modify, create derivative works from, publish, disclose or otherwise use Pathzz Materials, is granted under this EULA.  Client will not download, copy, publish, disclose, create derivative works of, disassemble, decompile or otherwise attempt to reverse engineer Pathzz Materials, nor will Client permit any other person to do so.  Client will be liable for all violations of these restrictions by its employees, subcontractors, or agents.
  3. If a Customization includes Client Materials, Client grants to Pathzz a non-exclusive, limited, non-transferable license to use the Client Materials solely to provide the services in connection with the Customization. Client represents and warrants that it has all the necessary rights to include the Client Materials in the Customization.

 

Confidential Information

  • Both parties shall hold, and shall cause their Related Bodies Corporate, and their own and their Related Body Corporate’s Personnel to hold, in strictest confidence any and all confidential information or data or code (including the terms of this EULA), plans, proposals, pricing or other material of any other party related to the operation, business or financing of Pathzz and any other information, code or data not of a published or public nature concerning or utilized by such party, but excluding any information, code or data:
  1. that is in or enters the public domain other than by reason of a breach of clause 7(a) by the receiving party; or
  2. that was in your possession prior to its disclosure to the receiving party,

such information, code or data subject to the exclusion above being Confidential Information.

Neither party may not use Confidential Information disclosed to them under this EULA for a purpose other than as contemplated by this EULA and the receiving party must not permit or assist any person to make any unauthorised use of the discloser’s Confidential Information.

Pathzz and the underlying data from which it is comprised, remain Confidential Information of Pathzz notwithstanding any transformation or analysis of Pathzz or the underlying data to create Derivative Materials. Transformations and analyses of Pathzz may also include Confidential Information of other third parties. Inclusion or incorporation of Confidential Information of any one or more parties into a product or service shall not affect the fundamental character of confidence of the respective contributor’s Confidential Information. The Confidential Information as respectively contributed and included in or incorporated into a product or service must only be used by you for a purpose expressly contemplated by this EULA and disclosed by you under limited disclosure conditions that are consistent with the requirements set out in this EULA and which seek to protect the confidentiality of that Confidential Information to the benefit of the contributor of that Confidential Information.

Disclaimer

You acknowledge and agree that, to the extent permitted by Law that:

  1. All information, data or other material made available in the Pathzz Platform are collected either by Pathzz using automatic means in the course of operating systems which are owned or used by Pathzz or from other third-party sources. Pathzz does not warrant the accuracy, completeness or reliability of such information.
  2. Pathzz do not represent or warrant that the Pathzz Platform is free from errors or omissions, or that they are exhaustive; and disclaim all other warranties, representations or endorsements, express or implied, with regard to the Pathzz Platform, including all implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

Personal Data

  1. Client may provide Pathzz with internal data in order to customise the New Materials to the Client’s specific requests (the “Raw Data”). Pathzz will use Raw Data to provide the services as specified in this EULA or as otherwise instructed and permitted by Client. The Parties agree that the services include archiving the Raw Data in a de-identified and aggregated form for research, studies, development, benchmarking, statistics, analytics, and to develop, improve, and enhance Pathzz’s products and services.  Any published end product will not identify the Client, the Client’s organisation, employees or any other specific individual.
  2. Where Pathzz processes Personal Data as a data processor, or as independent data controllers or equivalent under applicable data protection law, the Parties will comply with applicable laws, including Privacy Laws and maintain adequate security controls relevant to the Personal Data processed.
  3. Personal Data” means any information that Pathzz has access to, obtains, uses, maintains or otherwise handles in connection with the performance of the services that identifies an individual or relates to an identifiable individual.

 

Security

Having regard to the available technology, cost of its implementation, the nature, scope, context and purposes of the Personal Data processing, and taking into account the harm that might result from accidental loss, destruction, disclosure or damage of Personal Data, Pathzz will implement appropriate technical and organizational measures designed to prevent any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data.

Representations and Warranties

  1. Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, and has full power and authority to perform all of its obligations under this EULA; and (ii) the person executing this EULA on its behalf is duly authorized and empowered to bind the Party to this EULA.
  2. Client further represents and warrants that: (i) where Client provides Personal Data to Pathzz, Client has provided the required notices and obtained all necessary rights and consents to provide to Pathzz an individual’s Personal Data for the purposes stated in this EULA; and (ii) the collection of Personal Data by Pathzz at Client’s direction through customization of relevant services does not violate any applicable laws or any third party rights.
  3. EXCEPT AS PROVIDED IN THIS EULA, PATHZZ DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE

Indemnity & Limitation of Liability

You shall defend, hold harmless and indemnify Pathzz and their related Bodies Corporate and Personnel arising out of or in connection with:

  1. your use of, or reliance on, Pathzz; and
  2. your breach of this EULA
    • To the maximum extent permitted by law, you agree that aggregate liability for any claim, demand or proceeding on Pathzz (including for breach of contract, tort (including negligence), in equity or under any statute) (Claim) made under or in connection with this EULA is limited in aggregate to the total fees actually paid for your Pathzz licences as at the date the liability arose.
    • NEITHER PARTY WILL BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, RELATING TO THIS AGREEMENT.

Suspension & Termination

Pathzz may terminate or suspend this EULA and/or any licence granted to use the Pathzz platform with immediate effect by giving written notice at any time if the End User breaches any warranty or any other provision of this EULA which is incapable of being remedied, or where the breach is capable of being remedied, the other party fails to remedy the breach within 14 days after receiving written notice requiring you to do so;

From the date of termination of this EULA for any reason:

  1. Your access to Pathzz will be removed immediately and any data updates made available to you under this EULA will cease,
  2. all rights granted hereunder shall promptly terminate, and
  • neither Pathzz will be liable to the you or any third party for exercising their right of termination under this EULA.

Survival         

Termination of this EULA does not affect any accrued rights or remedies of either party.

Without limiting any other provision of this EULA, clauses  8 (Intellectual Property), 9 (Confidential Information), 10 (Disclaimer), 14 (Indemnity & Limitation of Liability), and any other clauses which should by their nature survive termination of this EULA, survive termination or expiration of this EULA for any reason.

Assignment and subcontracting

You must not assign, change, subcontract, create a security interest over, encumber or otherwise deal with any of your rights or obligations under this EULA without the prior written consent of Pathzz.

Pathzz’s consent to any sub-contracting, assignment or contracting out will not relieve you of your obligations to Pathzz under this EULA and you will be fully responsible for the acts or omissions of your sub-contractors, contractors, assigns and all their employees, as if they were your acts and omissions.

Client consents to, and authorizes Pathzz’s use of subprocessors, including Pathzz Affiliates, in connection with the provision of the services.  Processing activities may include accessing, storing, handling or otherwise using Personal Data.  Pathzz remains responsible for the work and activities of its subprocessors to the same extent Pathzz would be liable if performing the services. Pathzz is responsible for all payments to its subprocessors.  Pathzz has entered into a written agreement with subprocessors containing equivalent data protection obligations as in this EULA.

Governing law and jurisdiction

This EULA shall be governed by and construed in accordance with the laws of the State of NSW, exclusive of its choice of law rules.  Both parties must follow the procedures in this paragraph with respect to any dispute before starting court proceedings.

If a dispute arises under or relates to this EULA, the party claiming that a dispute has arisen, may notify the other party, who is the subject of the dispute, in writing of a formal dispute.

Within 14 days of receipt by the other party of a notice issued in accordance with clause 14(b) (or such other period as agreed by the parties in writing), authorised representatives of both parties must meet at a mutually acceptable time and place to attempt to resolve the dispute. At that meeting, the parties must use good faith efforts to discuss and resolve the dispute, acting reasonably.

If the dispute is not resolved by the parties within 7 days of the meeting referred to in clause 14(c), or within such period as the parties may otherwise agree, either party may commence or initiate legal proceedings.

Nothing in this paragraph prevents a party seeking urgent injunctive or similar interim relief from a court.

All notices under or related to this EULA will be in writing and deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.

Miscellaneous

Preprinted terms and conditions on any purchase order issued by Client, or terms and conditions or additional requests for information included in Client’s vendor set up process, under this EULA are superseded in their entirety by this EULA and without force or effect, even if Pathzz signs the purchase order or acknowledges such terms to be set up as a vendor in Pathzz’s systems and whether such signature or acknowledgement occurs prior to or after the execution of this EULA.  Under no circumstances will Pathzz’s acknowledgement of any such terms be considered an amendment to this EULA.

Definitions

Pathzz Platform means the product/software that is owned and developed by Pathzz which is licensed to you under this EULA. This can be the Pathzz Customer Insighs (CI) and or Pathzz Automated Intelligence (AI) platforms.

Derivative Materials means materials derived or created by you, which are based on, or created or derived from, Pathzz, but do not include Pathzz itself.

Pathzz means Pathzz Pty Ltd (ABN 28 623 796 378) and its Related Bodies Corporate.

Business Day means Monday to Friday between 9am and 5pm Sydney local time.

            Insolvency Event means where:

a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;

a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

a party becomes or is (including under legislation) deemed or presumed to be insolvent;

a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;

any composition or arrangement is made with any one or more classes of its creditors;

except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;

a party enters into liquidation whether compulsorily or voluntarily; or

any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means:

  • all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:
  1. registered and unregistered copyright;
  2. inventions (including patents, innovation patents and utility models);
  • confidential information, trade secrets, technical data, code, design, outputs and know-how;
  1. registered and unregistered designs;
  2. registered and unregistered trademarks;
  3. circuit layout designs, topography rights; and
  • rights in databases;
    • any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
    • any renewals, extensions and revivals, applications for and the right to apply for registration of any of the above; and
    • any rights of action against any third party in connection with the rights included in paragraphs (a) to (d) above,

but excluding moral rights, and similar personal rights, which by law are non-assignable.

Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, binding regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.

Loss means any loss, liability, Claim, damage, cost, charge, expense or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.

Privacy Laws means:

  • the Privacy Act 1988 (Cth);
  • the Spam Act 2003 (Cth);
  • the Do Not Call Register Act 2006 (Cth);
  • to the extent applicable, Part 13 of the Telecommunications Act 1997 (Cth);
  • to the extent applicable, any legislation from time to time in force in any:
  1. Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); and/or
  2. non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction),

affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and

(f)         any ancillary rules, binding guidelines, orders, directions, directives, codes of conduct or other instruments made or issued by a Government Agency under an instrument identified in paragraphs (a), (b) or (c),

as amended from time to time.

Related Body Corporate has the same meaning as given in the Corporations Act 2001 (Cth)