Terms of Use – for Australian users
Last Updated: 1 November 2021
Please read these Terms of Use carefully.
By accessing or using this website, mobile application or any of the AVCRM Services, or signing up for an account, you are agreeing to these Terms of Use, which will result in a legal agreement between you and the Company.
If you do not agree to these terms, you are not authorised to access or use this website, mobile application or any of the AVCRM Services.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms of Use:
AVCRM Services means the products, services, platforms and data which may be:
a. promoted by the Company on its website;
b. licenced or supplied to You by the Company on or through its website, or any other URL as notified by the Company; or
c. accessed by You on or through the Company’s website, or any other URL as notified by the Company.
AVCRM Product Data means any results, data, meta data, photographs, alerts, reports which is either contained within or derived from, captured by, entered into or generated by the AVCRM Services (including any platforms) or as otherwise provided in the usual course of business by the Company.
Company means AVCRM Products Pty Ltd ACN 606 130 867 trading as AVCRM.
Confidential Information means all information (whether in written, electronic or other form) concerning or in any way connected with the Company and/or You, and their respective businesses, services, products (including without limitation the AVCRM Services), customers, property or affairs and which is disclosed to either the Company or You by the other party, but does not include information which is generally publicly available.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world including current and future registered and unregistered rights in respect of trademarks, copyright, source-code, databases, Product Data, circuit layouts, designs, patents, inventions and discoveries, trade secrets, know-how and confidential information and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967 and Intellectual Property has the corresponding meaning.
Party and Parties means the Company and You.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
Privacy Act means the Privacy Act 1988 (Cth).
Subscription Fee means the annual or monthly fee payable by You for use of the AVCRM Services.
Terms of Use means these Terms of Use.
Territory means Australia.
User means a person authorised by You to access or use the AVCRM Services and includes any person to whom you have provided login credentials to access, use or operate Your account with the Company.
You and Your means the person to whom the Company provides the AVCRM Services (whether or not in consideration for payment of the Subscription Fee), and includes, unless the context requires otherwise, any User accessing or using the AVCRM Services.
1.2 In these Terms of Use, unless the context requires otherwise, the headings in these Terms of Use are for convenience of reference only and will not affect the interpretation hereof. The words “include” and “including” are not words of limitation. Words importing the singular number will include the plural and vice versa. A reference to a ‘person’ includes an individual, corporation, trust, partnership, unincorporated body or other entity.
2. ACCEPTANCE OF TERMS
2.1 The Company makes the AVCRM Services available to You subject to the Terms of Use. These Terms of Use also apply to any updates, enhancements and new features and products relating to the AVCRM Services which are provided to You or accessible by You in connection with the website or mobile application.
2.2 By creating an account with the Company or otherwise accessing or using the AVCRM Services, You (and all individual Users accessing or using the AVCRM Services on Your behalf) represent to the Company that You have read, understood, and agree to be bound by all terms, conditions and notices contained in or referenced to in these Terms of Use and in connection with the website and mobile application, and agree to follow all applicable Laws.
3. CHANGES TO THESE TERMS OF USE
3.1 The Company may modify these Terms of Use from time to time by posting modified Terms of Use on or accessible through its website or mobile application or by otherwise notifying You of such modifications.
3.2 Your continued use of the AVCRM Services thereafter will constitute your acceptance of such modifications.
3.3 At the time of any material modifications, the Company will change the “Last Updated” date appearing at the top of the page. You agree to review these Terms of Use from time to time so that you are aware of any modifications.
3.4 If You and the Company have entered into a separate written agreement (“the Specific Agreement”) governing Your use of the AVCRM Services, then:
3.4.1 clauses 3.1 and 3.2 shall not apply to You, unless You agree in writing to the modifications; and
3.4.2 in the event of any inconsistency between the terms set out in these Terms of Use and the Specific Agreement, then the terms in the Specific Agreement shall prevail.
4. LICENCE AND RESTRICTIONS
4.1 By registering with the Company and paying the Subscription Fee through this website or mobile application, or using any of the AVCRM Services, the Company hereby grants You a non-exclusive, non-transferable, non-sublicensable licence to access and use the AVCRM Services in the Territory solely for Your internal use and purposes, including commercial purposes provided such purpose is in the ordinary course of Your business (“Licence”).
4.2 You agree to not to use the AVCRM Services except as in accordance with the Licence granted to You as set out in these Terms of Use.
4.3 You acknowledge and agree You are not a business acting as a reseller of the AVCRM Services.
4.4 You acknowledge and agree to use the AVCRM Services in accordance with all laws and except as expressly permitted under these Terms of Use, or to the extent permitted by law, You must not, or encourage any person or entity to:
4.4.1 decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the AVCRM Services, including any source code, object code, algorithms, methods or techniques used or embodied therein;
4.4.2 modify, duplicate or create any derivative works based upon the AVCRM Services or AVCRM Product Data;
4.4.3 distribute, resell, commercialise, disclose, market, publish, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer any of the AVCRM Services or AVCRM Product Data in any form to any third party, or use the AVCRM Services or AVCRM Product Data on behalf of or for the benefit of any third party;
4.4.4 remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the AVCRM Services or AVCRM Product Data;
4.4.5 data mine, scrape, crawl, email harvest or use any process or processes that send automated queries to the AVCRM Services or AVCRM Product Data; and
4.4.6 incorporate any portion of the AVCRM Services or AVCRM Product Data into any other materials, products or services that are not intended for Your personal use.
4.5 You agree to supply accurate and complete information when creating your account and when using the AVCRM Services. You agree that you will not insert false, fraudulent, indecent, or obscene information as part of Your registration, that You will provide accurate and complete information and that your registration and usage of the AVCRM Services will comply with all applicable Laws as well as the Terms of Use.
4.6 You agree to immediately notify us of any unauthorised use of Your account.
4.7 The Company may refuse to allow any User from registering or using the AVCRM Services for any reason at its sole discretion.
4.8 You must ensure that your Users comply with these Terms (as modified by any Specific Agreement). You are responsible for the actions of your Users, including their use of the AVCRM Services under Your account.
4.9 If you are a User, your use of the AVCRM Services is governed by these Terms (as modified by any Specific Agreement).
5. USE OF THE SERVICES
5.1 All access to the AVCRM Services will be via the Company’s website (or any other URL as notified by the Company) or mobile application.
5.2 You will be responsible for obtaining access to the AVCRM Services and for all costs and expenses in connection with accessing and using the AVCRM Services including the Subscription Fee, internet service provider fees, telecom fees, equipment fees and software fees.
5.3 You acknowledge that the Company will have no obligation to assist You in accessing the AVCRM Services. The Company will for as long as You are registered to use the AVCRM Services provide support in using the AVCRM Services.
5.4 The Company will not be held liable for any delay, defect, deficiency and/or loss of service in connection with the AVCRM Services or any loss caused by or on account of or in connection Your use or access to the AVCRM Services.
6. PAYMENT OF THE SUBSCRIPTION FEE
6.1 In consideration for the provision of the AVCRM Services by the Company, You must pay the Subscription Fee to the Company.
6.2 Payment of the Subscription Fee is to be paid by Paypal, Credit Card or EFTPOS using the payment portal on the Company’s website.
6.3 The Company will provide you with a Tax Invoice and Receipt on receipt of payment of the Subscription Fee via email to the email address provided by You.
6.4 You acknowledge that Your non-use, or minimal use, of the AVCRM Services does not in itself constitute a right to a full or partial refund of the Subscription Fee.
6.5 The Company reserves the right to increase the Subscription Fee at any time without notice. Any changes will only affect renewals and not existing accounts already paid for. If You request or require an upgrade to your subscription plan (including from any increase to a number of Your Users), or additional services or functionality You request and the Company provides (at its discretion), then the Company may charge an additional Subscription Fee, to be applied on a pro-rata basis for the remainder of Your current billing cycle and in full thereafter.
6.6 If payment of the Subscription Fee is overdue, the Company may cancel or suspend delivery of the AVCRM Services until payment is received by the Company.
6.7 All sums payable by You are, unless expressly stated otherwise, exclusive of GST, sales, use, goods and services, value added or other similar tax or levy, and any penalties and/or interest related thereto (together, “GST Tax”). If GST Tax is payable on any supply, You must upon receiving a tax invoice from the Company pay to the Company an amount equal to the GST Tax payable on the supply. This amount will be paid in addition to, and at the same time as, the consideration for the supply.
7. INTELLECTUAL PROPERTY
7.1 You acknowledge and agree that, as between the Company and You:
7.1.1 The Company is and will remain the sole and exclusive owner of all rights, title and interest in and to the AVCRM Services and AVCRM Product Data, including any and all Intellectual Property Rights contained or embodied within the AVCRM Services or AVCRM Product Data.
7.1.2 You acquire no rights in or to the AVCRM Product Data accessed pursuant to these Terms of Use. However, You are permitted to export relevant compliance documents (being inspection reports, safety reports, etc.) using the export function of the AVCRM Services.
7.1.3 You will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Company’s ownership of the AVCRM Services or AVCRM Product Data, or the creations, inventions and Intellectual Property Rights contained or embodied within the AVCRM Services and AVCRM Product Data.
7.1.4 You will not make copies or derivative works of the AVCRM Services and AVCRM Product Data; and
7.1.5 All other uses of the AVCRM Services and AVCRM Product Data not expressly addressed in these Terms of Use are strictly prohibited.
8. LIMITED WARRANTY
8.1 To the fullest extent permitted by law, all warranties are excluded. The Company expressly disclaims all warranties that:
8.1.1 The AVCRM Services will meet Your requirements or be fit for any particular purpose.
8.1.2 The AVCRM Services or AVCRM Product Data will be error-fee.
8.1.3 If the AVCRM Services are accessed via the Company’s website or mobile application, that the Company’s website or mobile application will function in an uninterrupted manner, be accessible 24 hours per day 7 days per week, or be completely secure.
8.1.4 Any data stored by AVCRM Services will be accurate, reliable or secure.
8.1.5 Any errors or defects will be corrected, although the Company will endeavour to correct errors within a reasonable time related to the correctness, accuracy, reliability of the AVCRM Services.
8.1.6 The AVCRM Services will be free of viruses or other harmful components, although the Company will use reasonable endeavours to ensure that the AVCRM Services will be free of viruses.
9. LIMITATION OF LIABILITY
9.1 To the maximum extent permitted by law, in no event will the Company’s aggregate liability to You exceed the Subscription Fee paid by You.
9.2 To the maximum extent permitted by law, in no event will the Company be liable to You for all liabilities, claims and expenses, including but not limited to solicitor fees, damages, internet connection fees, and all other third party fees that may arise as a result of Your use of the AVCRM Services.
10. CONFIDENTIAL INFORMATION
10.1 Each Party (“Recipient”) acknowledges that the other Party (“Disclosing Party”) may disclose to it Confidential Information during the term of the Agreement. All such information will remain the exclusive property of the Disclosing Party.
10.2 Subject to clause 10.3 a Recipient must keep confidential any Confidential Information disclosed to it by the Disclosing Party.
10.3 A Recipient may disclose Confidential Information disclosed to it by the Disclosing Party:
10.3.1 To its officers or employees or financial, legal or other advisers who have a need to know for the purposes of this agreement and who undertake to the Disclosing Party a corresponding obligation of confidentiality to that undertaken by a Recipient under this clause 10;
10.3.2 Only as is absolutely necessary in order to fulfil its obligations pursuant to these Terms of Use; or
10.3.3 If required by law, provided that the Recipient must:
10.3.3.1 To the extent possible, notify the Disclosing Party in writing immediately when it anticipates that it may be required to disclose any Confidential Information disclosed to it by the Disclosing Party; and
10.3.3.2 If disclosure cannot be avoided:
10.3.3.2.1 Only disclose Confidential Information to the extent reasonably required by law; and
10.3.3.2.2 Follow any reasonable directions of the Disclosing Party concerning the disclosure.
11. CUSTOMER INDEMNITY
11.1 You will indemnify and hold the Company harmless from any third party claim or suit brought against the Company due to any breach by You of these Terms of Use or any use or reliance by You of or on any AVCRM Services or AVCRM Product Data or any representations or promises made by or for You to others due to or based on any of the AVCRM Services or AVCRM Product Data , and will pay any final judgment entered against the Company or any settlement of such claim or suit and any costs incurred and recovered in such negotiations and litigation will be to the account of You.
12. BREACH AND TERMINATION
12.1 If You (or your employees, agents, Users and/or contractors) breach any term of these Terms of Use, the Company may, at its sole election, do one or any of the following:
12.1.1 Suspend or terminate Your access to the AVCRM Services and AVCRM Product Data immediately upon written notice to You;
12.1.2 commence proceedings against You for any loss or damage the Company suffers as a result of the breach;
12.1.3 refer the matter (including Your name and contact details) to any debt collector or other third party to assist the Company in collecting any fee not paid to the Company under these Terms of Use, including conducting any consumer credit searches or listing You with a credit reporting agency.
12.2 The Company reserves the right to suspend or terminate Your access to the AVCRM Services in circumstances where:
12.2.1 The Company reasonably believe that You (which includes your employees, agents, Users and/or contractors) has used or disclosed the AVCRM Services, AVCRM Product Data or other Confidential Information in a manner not permitted under these Terms of Use or otherwise has materially breached these Terms of Use; or
12.2.2 An event of force majeure occurs that affects the Company’s ability to provide the AVCRM Services or AVCRM Product Data.
12.3 If any use is made of the AVCRM Services or the AVCRM Product Data by any person or entity other than You and such use is attributed to the act or default of You, then without prejudice to the Company’s other rights and remedies, You will immediately be liable to pay to the Company an amount equal to the charges which such person or entity would have been obliged to pay had the Company granted a Licence and/or subscription to the unauthorised user at the beginning of the period of the unauthorised use.
12.4 Either Party has the right to terminate the Licence, by a written notice to the other party specifying the event or events in relation to which the notice is given, if:
12.4.1 The other Party becomes insolvent; or
12.4.2 The other Party commits a breach of these Terms of Use, and
12.4.2.1 The breach is material and not capable of being cured; or
12.4.2.2 If the breach is capable of being rectified and the defaulting Party fails to rectify the breach within 30 days of being notified in writing of the breach by the Party giving the notice;
12.4.3 If You fail to rectify any rectifiable breach, the Company may, at its election, accept Your failure to rectify as a repudiation of this Licence and accept that repudiation.
13. CONSEQUENCES OF TERMINATION
13.1 If this Licence is terminated or expires, all of Your rights to use the AVCRM Services and AVCRM Product Data will immediately end, and You will at Your expense promptly return, or at the Company’s election destroy, any copies of the AVCRM Services, AVCRM Product Data and other Confidential Information that are either in Your possession or under Your control.
13.2 Termination of this Licence will not act as a waiver of any breach of these Terms of Use and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Licence.
13.3 A Party’s termination of this Licence will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.
14. REFUSAL OF SERVICE
14.1 The Company reserves the right, acting reasonably, to refuse to provide the AVCRM Services and/or the AVCRM Product Data to any person, group, organisation or business without providing a reason.
15. PRIVACY
15.1 The Company is bound by the Privacy Act and has developed a Privacy Policy, available on the Company’s website in accordance with the Privacy Act and published regulatory guidelines. To the extent any of the AVCRM Services or AVCRM Product Data contains Personal Information, You agree to:
15.1.1 comply with the Privacy Act whether or not You are bound by the Privacy Act.
15.1.2 only use Personal Information the Company discloses to You for the purposes for which we disclosed that Personal Information.
15.1.3 take all reasonable steps to ensure that You will not act in a way that contravenes the Privacy Act.
16. GOVERNING LAW
16.1 These Terms of use are governed by the laws of the State of New South Wales and the commonwealth of Australia and each party submits to the non-exclusive jurisdiction of the Court of New South Wales in the event of any dispute arising out of or in connection with or in relation to these Terms of Use.
17. GENERAL
17.1 You may not assign or transfer Your account without the Company’s prior written consent, which the Company may grant or withhold in its sole and absolute discretion.
17.2 Any provision of these Terms of Use which is unenforceable or partly unenforceable is, where possible, to be read down so as to be enforceable, and if it cannot be read down, the provision or part of the provision, severed to the extent necessary to make these Terms of Use enforceable, unless this would materially change the intended effect of these Terms of Use.
17.3 A right may only be waived in writing, signed by the Party giving the waiver, and no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
17.4 You may have the benefit of certain statutory guarantees relating to the Services pursuant to the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth). Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Conditions or in connection with the supply of the Services by law, statute, custom or international convention (including those relating to quality or fitness for purpose) are excluded.
17.5 These Terms of Use are not to be interpreted against the interests of a party merely because that Party proposed this document or some provision in it or because that party relies on a provision of these Terms of Use to protect itself.
17.6 Airspace information related to Australia is not approved under Australian Civil Aviation Safety Regulation Part 175 (CASR Part 175), is advisory only, and is not to be used for the purpose of air navigation.