Terms of Service
Turner Software Pty Ltd and its associated entities (together Turner Software, we, us, or our) provide software services, online services, data aggregation services, software development services, and associated software including but not limited to BrandVantage (collectively, Services). By accessing, subscribing to, or purchasing any of the Services, you, and any entity you are authorised to represent, agree to be bound by these Terms of Service (Agreement).
By accessing or using our Services, you are agreeing to the terms below.
- This Agreement shall commence on the date you are granted access to the Services, and shall continue until such time as we terminate the Agreement, or your access to the Services.
- Any termination of this Agreement or your access to the Services will not prejudice any rights or duties arising prior to the date of termination that by their nature persist beyond the date of termination.
Provision of Services
- In consideration for you paying any fees charged by Turner Software in respect of provision of access to the Services, Turner Software will make the Services available to you on the terms of this Agreement.
- The provision of the Services may, at Turner Software's discretion, be provided by a third party or through use of third party software or sub-contractors.
Where Services are dependent upon interfacing with third party software, including via Application Protocol Interfaces (API), the provision of Services may be affected by changes to:
- the third party API;
- the third party's software; or
- the third party's terms of service.
We make no warranty that the Services will continue to work with any third party software, or not breach any third party's terms of service.
- You hold Turner Software, its officers, agents and employees, harmless from any loss, damage or cost incurred by virtue of your use of the Services insofar as that loss, damage or cost arises from your use of the Services in conjunction with a third party's software products.
- From time to time, Turner Software may change, modify, upgrade, or remove features, functionality or other elements of Services. Where it does so, the terms of this Agreement will apply to such modifications. Where a Service is modified or removed, you agree that Turner Software will not be liable for any loss, cost or damage arising from that removal.
- You will not take any action which has, or would be likely to have, a negative impact upon the operations of Turner Software, its software or hardware systems, or those of its other customers.
In particular, you will not:
- upload malicious or destructive software (including Trojan horses, worms or other viruses) to our servers;
- take any action that would breach the terms of service of any third party provider that interfaces with the Services;
- use the Services for unlawful purposes or in any way which could breach a relevant law, regulation or statute;
- use the Services in a manner that exceeds any limitations that Turner Software places or has placed on the number of queries or requests you are entitled to make, or at a volume that is likely to impact on the stability or accessibility of the Services; or
- use the Services to infringe any third party's intellectual property rights.
- You must at all times take reasonable steps to ensure the security of all systems used to access the Services, and ensure that all access and log-in details are maintained securely.
- You must notify us of any breach of security that you become aware of as soon as is reasonably practicable.
- You must not prevent our access to the servers on which the Services are provided.
- You are required at all times to comply with applicable legislation that relates to your use of the Services, including the Privacy Act 1988 (Cth) (Privacy Act) and the General Data Protection Regulation (GDPR).
- You indemnify Turner Software, its officers, agents and employees, from any and all liability arising from a failure by you to comply with the Privacy Act or GDPR, or to obtain necessary consents.
- For the purposes of the GDPR, where you require Turner Software to process Personal Information, it will do so as a Data Processor, and the terms of the Turner Software Data Processing Agreement will be those located on our website.
For the purposes of this Agreement:
- ‘Background Intellectual Property’ means Intellectual Property owned by, or licensed to, Turner Software, and includes any software provided to you by Turner Software;
- ‘Client Intellectual Property’ means Intellectual Property provided by you to Turner Software for use in the provision of the Services, including Intellectual Property uploaded to our servers to enable the provision of Services to you;
- ‘Third Party IP’ means Intellectual Property of third parties supplied by you to Turner Software in the course of Turner Software providing you with the Services.
- ‘Intellectual Property’ includes all statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions (including registered and not yet registered patent rights), plant varieties, circuit layouts, registered and unregistered trademarks, designs, the right to have confidential information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in industrial scientific, literary or artistic fields.
- Ownership of Background Intellectual Property and Client Intellectual Property is not transferred by virtue of this Agreement.
- Turner Software grants you a revocable, royalty free, non-exclusive licence to use the Background Intellectual Property for so long as Turner Software is providing you with the Services.
- You grant Turner Software a perpetual, irrevocable, royalty-free, non-exclusive, world-wide, assignable and sub-licensable licence to use the Client Intellectual Property to the limited extent necessary to provide you with the Services, and comply with any legal obligations (including record keeping).
- You warrant to Turner Software that its use of any Third Party IP will not infringe the rights of any third party. You agree to indemnify Turner Software, its officers, agents and employees, against any cost, loss or damage arising from a claim by a third party that Turner Software's use of Third Party IP infringes that party's rights.
- Neither party will be liable for any delay or failure to perform its obligations under this Agreement (other than any obligation to pay an amount) if such failure or delay is due to an act, omission, or circumstances over which the party affected by it could not have reasonably exercised control or taken steps to anticipate or avoid (Force Majeure).
- Each party must take such actions as are reasonable to mitigate against any delay or failure of performance of an obligation caused by a Force Majeure event.
Term and termination
Turner Software may terminate this Agreement if:
- you breach this Agreement and do not remedy the breach within seven days of receiving notification of such a breach, or such other time is agreed, by written notification; or
- an invoice remains outstanding for more than seven days.
- Turner Software party may terminate this Agreement, at its convenience, on 30 days’ written notice.
- You may terminate this Agreement, at your convenience by providing notice to Turner Software in writing. Where you terminate this Agreement for convenience, the Agreement will terminate at the end of the current subscription for Services you have purchased.
- To the extent permitted by law, in no circumstance will you be entitled to a refund for an unexpired term of a subscription to the Services you have purchased.
- Turner Software warrants that the Services it provides to you will be provided with reasonable care and skill.
- Turner Software does not guarantee that the Services will be free from disruption, corruption or access by third parties, or the accuracy or completeness of any information provided through or displayed via the Services.
- Turner Software does not warrant that the Services will be fit for any specific purpose, unless stated in writing.
- To the greatest extent permissible by law, Turner Software disclaims any and all implied warranties with respect to the provision of the Services beyond the warranty contained in clause 1 of this Agreement.
- Where a warranty cannot be excluded, you agree that our liability will be limited to the resupply of the Services to you, or the cost of resupplying the Services to you.
- In all cases, Turner Software's liability to you will be limited to the amount of fees paid by you in the preceding twelve month period.
- You indemnify (and agree to keep indemnified) Turner Software, its officers, agents and employees from and against any loss (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by any of those indemnified arising from any claim, suit, demand, action or proceeding by any person against any of those indemnified arising out of or in connection with your use of the Services.
- The above indemnity will not apply to the extent that the demand, claim, action or proceeding has resulted from the negligence of Turner Software.
Accessing our Services
- Our Services may contain or display third party content (such as text, images, videos, audio, or software). This content is the sole responsibility of the person that makes it available, and not Turner Software. We may sometimes review content to determine whether it is illegal or violates our policies or the Agreement, and we may remove or refuse to display content.
- Content that can be accessed through our Services may be subject to intellectual property rights, and, if so, you may not use it unless you are licensed to do so by the owner of that content or are otherwise permitted by law. Your access to the content provided by the Services may be restricted, limited, or filtered in accordance with the applicable laws and regulations.
- You warrant that you have legal authority and capacity to enter into this Agreement on behalf of any entity you claim to represent.
- You warrant that you have obtained written consent from any end user you provide with access to the Services to be bound by the terms of this Agreement.
Any notice, consent, agreement, request, direction, submission, offer, acceptance, rejection or other communication given under or in relation to this Agreement must be in writing, signed by the party giving it or by its duly authorised officer and delivered personally or by pre-paid registered post or email to the addresses provided by a party, or such other address notified to each party from time to time. Notices will be deemed to have been delivered on the fifth business day in the location in which they are to be received after they have been sent (if by post), or on the next business day after they have been sent (if by email).
- Unless otherwise specified in this Agreement, the consideration expressed in this Agreement for any taxable supply made under or in connection with this Agreement does not include Tax (e.g. sales tax, Value Added Tax (VAT) or Goods and Services Tax (GST)).
- The recipient of a taxable supply under or in connection with this Agreement must, in addition to and at the same time as the Tax exclusive consideration is payable, pay to the supplier an amount equal to the amount of Tax imposed by the law from time to time on taxable supply.
- The additional amount is not payable unless the supplier provides to the recipient a tax invoice which is an approved form for taxation purposes.
This Agreement, contains the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
No amendment or variation of this Agreement is valid or binding on Turner Software unless it has agreed to that variation in writing.
- Turner Software may assign its rights and obligations under this Agreement on providing written notice to you of its intention to do so.
- Your rights and obligations under this Agreement are personal and may not be assigned without Turner Software's prior written consent, which shall not be unreasonably withheld.
Governing law and jurisdiction
- This Agreement is governed by the laws of South Australia.
- Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in South Australia in connection with matters concerning this Agreement.
The relationship between the parties is that of independent contractors. The parties are not partners, joint-venturers, or principal and agent.
If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
- our contact details;
- how you may access your Personal Information held by us and how you can seek a correction of that information;
- our approach to any data breach; and
- how you may complain about any failure of us to comply with the applicable laws and how we deal with such a complaint.
Changes to the Agreement
- We may change the Agreement or any portion, for example, to reflect changes to the applicable law or changes to our Services.
- Any changes we make will be posted to the Turner Software website on our website.
- Changes will not apply retrospectively and will become effective no sooner than 14 days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately.
- If you do not agree to the modified Agreement for a Service, you should discontinue your use of that Service. Your continued use of the Service constitutes your acceptance of the modified Agreement.