These terms of use are issued by Sarb Management Group Pty Ltd trading as Database Consultants Australia (ABN 28 548 551 396) of Level 6, 30 Convention Centre Place, Melbourne, Victoria, Australia (“IncNet”) and govern your subscription to and use of IncNet’s online software-as-a-service subscription product known as MarketBase+ (“MarketBase+”), which may be used to retrieve business contact information of individuals listed in the MarketBase+ database (“Outputs”); however if you and IncNet have separately executed an agreement for your MarketBase+ Subscription, then that agreement will apply instead. You warrant that you are validly authorised to represent and enter into these terms on behalf of the business entity you represent, in which case references below to “you” and “your” will be construed as references to that business entity. If you are not so authorised, you must not use or subscribe to MarketBase+.
These terms may be updated from time to time on notice to you, but no modification will take place until your next Subscription renewal date. IncNet will update, maintain and modify the MarketBase+ product on an ongoing basis, but will not modify it in a manner that materially reduces its functionality.
In these terms, capitalised words are as defined in bold below or elsewhere in these terms:
Authorised User is an individual natural person you have authorised and registered to access MarketBase+ on your behalf, who is either your employee or on-site contractor.
Intellectual Property Rights means all intellectual property rights including, without limitation, patents and rights to inventions, copyright and neighbouring rights, trade marks, business and domain names, goodwill, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, whether registered or unregistered, and all similar rights, which subsist now or in the future anywhere in the world.
Subscription means your subscription for MarketBase+ which you purchased online and is governed by these terms.
Subscription Fee means the applicable fee payable for your Subscription as displayed to you at the time of purchase or renewal.
Subscription Period means the initial subscription period you purchased and pre-paid for, as adjusted in accordance with clause 7.2.
Subscription Tier means the level of subscription you purchased (as displayed to you at the time of purchase) and all subscription entitlements, limits and exclusions applicable to that level of subscription.
Subject to payment of the applicable Subscription Fee for the relevant part of the Subscription Period, IncNet authorises you to access and use MarketBase+ and Outputs you generate from that authorised use, only:
- in accordance with the entitlements, limits and exclusions of your Subscription Tier;
- via the number of Authorised Users permitted for your Subscription Tier;
- during the pre-paid Subscription Period;
- for your legitimate, lawful internal business purposes; and
- in accordance with these terms.
Your authorisation to use MarketBase+ and Outputs does not extend to any third party or your related bodies corporate, unless otherwise agreed by IncNet in writing.
You are solely responsible for the security of your Authorised Users’ access credentials for MarketBase+ (“Credentials”) and all activity undertaken using them. You must ensure that Credentials allocated to an Authorised User are used only by that Authorised User, kept confidential and not shared between individuals. You must immediately notify IncNet if you become aware of any unauthorised use or access of MarketBase+ or Credentials, or have reason to believe the security or confidentiality of any Credentials have been compromised. IncNet may deactivate or reset accounts and passwords at its discretion to protect the security of MarketBase+ (and any user accounts).
IncNet has the right to audit, monitor and verify (including via electronic means) your use of MarketBase+ to check your compliance with these terms. You must cooperate with IncNet and provide any reasonably required assistance in relation to such audit or verification, including (without limitation) by making relevant records available and requiring Authorised Users and your other agents and employees, to cooperate with IncNet. If you have used MarketBase+ in excess of your entitlements or in breach of these terms, you must, on demand, pay to IncNet additional applicable Subscription Fees and IncNet’s reasonable expenses.
You may use Outputs retrieved from your authorised use of MarketBase+ to:
- contact the individuals the subject of those Outputs; and
- save those Outputs to your own databases, solely for your internal business purpose of engaging in business-to-business communications to promote your products and/or services, provided that:
- your use of Outputs complies with our Fair Usage Policy available at https://www.marketbaseplus.com/fair-usage-policy/
- your use of Outputs complies with all applicable laws;
- if any individual the subject of an Output notifies you that they do not wish to receive communications or contact from you, you honour their request; and
- any emails you send using Output data contain: (A) a functioning “unsubscribe” and opt-out facility; and (B) information about the identity and contact details of the person or entity authorising the communication.
IncNet collects Outputs in accordance with its Privacy Policy located at https://data.com.au/privacy-policy/ and applicable privacy laws, and is authorised to make Outputs available to you. However, use of MarketBase+ and Outputs does not ensure your compliance with applicable laws. It is solely your responsibility to ensure that your use, retrieval, storage, retention, and other processing of Outputs complies with all applicable privacy, data protection, telecommunications and anti-spam laws (including, without limitation, the Spam Act 2003 (Cth)), and all other applicable laws, including in any jurisdiction you operate in or use MarketBase+ in. It is your responsibility to check Outputs against the Do Not Call Register or any similar register or database, and to ensure you are permitted under applicable law (including the Spam Act 2003 (Cth)) to use Outputs in the way you intend.
IncNet owns and reserves all Intellectual Property Rights and other rights in MarketBase+ and the software, information, databases and data comprising it, as well as all of its Outputs and MarketBase+ product documentation (“MarketBase+ Materials”) except to the extent access and licence rights are expressly granted to you under these terms. MarketBase+ Materials are IncNet’s confidential and proprietary material, and you must not disclose them to any third party.
You must not do, permit or attempt any of the following, except as permitted in writing by IncNet:
- sublicence, lease, sell, transfer or assign your rights to use MarketBase+ or Outputs;
- use, copy or recreate any part of MarketBase+ or Outputs other than as specifically authorised under these terms;
- use MarketBase+ or Outputs for the benefit of a third party;
- reverse engineer, decompile, disassemble, translate or modify MarketBase+ in any way;
- bypass or avoid any security device or measure implemented in connection with MarketBase+;
- use MarketBase+ or Outputs in connection with the establishment, development or maintenance of any database, product, service, website, publication or other material which is similar to or derives any commercial benefit from MarketBase+ or Outputs (other than maintaining your own internal databases as permitted by these terms), or for any commercial publications; or
- use MarketBase+ or Outputs for data or database service provision.
- All Subscription Fees are payable online and in advance via the online payment method(s) made available by IncNet. IncNet will not provide or continue your MarketBase+ access unless full payment of the Subscription Fee is received.
- Your Subscription continues initially for the pre-paid Subscription period you selected and paid for at the time of purchase. At the end of that initial period and any subsequent renewal period(s), your Subscription automatically renews for successive periods of the same duration as the initial Subscription Period, at the then-current applicable Subscription Fee notified by IncNet. However, either party may notify the other party at least 14 days before the end of the then-current Subscription Period of its election to cancel the Subscription, in which case the Subscription will not automatically renew.
- A party may terminate these terms (and your Subscription) if the other party commits a material breach of these terms which, if capable of remedy, is not rectified or remedied within 14 days of a notice requiring such action. If IncNet exercises this right, you will not be entitled to a refund of pre-paid Subscription Fees. If you validly exercise this right, you will receive, on request, a pro-rata refund of pre-paid Subscription Fees based on the unexpired portion of your pre-paid Subscription Period.
- You may cease using MarketBase+ or terminate these terms (and your Subscription) for convenience by notice in writing to MarketBase+ in your discretion and at any time, but you will not be entitled to any refund of pre-paid Subscription Fees.
- You are solely responsible for paying all taxes imposed on or applicable to the transactions contemplated by these terms.
- At the end of the Subscription Period: (a) your right to use MarketBase+ and Outputs terminates; and (b) you must delete or otherwise permanently destroy and remove from your systems and databases any Outputs (except that if, during the Subscription Period, an individual has expressly notified you that they wish to continue receiving information or communications from you, then you may retain that individual’s business contact information after the Subscription Period).
- IncNet warrants that MarketBase+ will perform substantially in accordance with its published documentation. If MarketBase+ does not so perform, you must notify IncNet and provide all reasonable details of the alleged defect in writing, within a reasonable time (generally, no longer than 30 days). You must also provide all further information reasonably requested by IncNet to enable it to investigate your notification. IncNet will investigate the alleged defect and, within a reasonable time, either: (a) repair MarketBase+; or (b) terminate your Subscription to MarketBase+ and issue a pro-rata refund of your pre-paid Subscription Fee (based on the unexpired portion of your pre-paid Subscription Period). This constitutes IncNet’s total liability and your sole and exclusive remedy for a breach of the warranty given in this clause.
- IncNet obtains Outputs from sources it believes to be reliable and uses reasonable efforts to regularly verify the accuracy and completeness of the Outputs generated by MarketBase+. However, information and accuracy may change during the Subscription Period and diminish over time. You must treat Output which was not recently retrieved from MarketBase+ with additional caution. IncNet does not warrant that MarketBase+ or Outputs are error free, accurate, constantly available or available without interruption; they are provided “as-is” and “as-available”. IncNet does not warrant that the Outputs or MarketBase+ are suitable for your specific intended uses or that they will achieve your desired results, or that their use will produce any particular results.
- IncNet excludes, to the maximum extent permitted by law, all warranties (express or implied) not set out expressly in these terms, other than those which are not permitted by law to be limited or excluded (including those guarantees under the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) which cannot, by law, be excluded). With respect to any such non-excludable warranty or guarantee, IncNet’s liability is limited, to the extent permitted by law, to: (a) the re-supply of the affected goods or services; or (b) the cost of having the goods or services supplied again.
- Consequential Loss. To the extent permitted by law, neither party is liable for any indirect, consequential, special, incidental or punitive loss or damages (whether arising in tort, including negligence, contract, under indemnity, under statute or otherwise), even if informed of the possibility of such loss or damages.
- You are solely responsible for your use of MarketBase+ and Outputs, and IncNet is not liable for any claim against you arising from your use of MarketBase+ or Outputs (except as set out in these terms).
- Each party’s aggregate liability in connection with these terms, MarketBase+, Outputs and your Subscription (and any claims arising from them) is limited to the Subscription Fees you have paid to IncNet during the initial or renewed Subscription Period during which the claim arose, subject to this clause. The limitation on liability in this clause does not apply to: (i) IncNet’s indemnity obligations under clause 9.4; (ii) your indemnity obligations under clause 9.5; (iii) your obligation to pay Subscription Fees; or (iv) your infringement of IncNet’s Intellectual Property Rights or your use of MarketBase+ or Outputs in breach of these terms. To the extent permitted by law, neither party is liable to the other in respect of any claims brought more than 12 months after the cause of action arose.
- IncNet Indemnity. IncNet will indemnify you against any third party claim made against you based on the allegation that your use of MarketBase+ in accordance with these terms infringes the Intellectual Property Rights of that third party. In the event of such a claim you must provide IncNet:
- prompt written notice of the claim;
- the sole right to control, defend and/or settle the claim (at IncNet’s own cost); and
- all reasonable cooperation, information and assistance requested by IncNet.
In the event of such a claim, you must also immediately cease using MarketBase+ or any part of it giving rise to the claim (as instructed by IncNet), and IncNet may, at its election: (a) modify MarketBase+ so as to remove the infringement; (b) obtain rights for you to continue using MarketBase+; or (c) terminate your subscription and issue a pro-rata refund of pre-paid Subscription Fees (based on the unexpired portion of the then-current pre-paid Subscription Period). IncNet’s obligations under this clause do not apply where the claim is based on or caused by: (i) your combination of MarketBase+ or Outputs with services, products or information not supplied by IncNet; (ii) your use of Outputs, which is your sole responsibility; (iii) your modification of MarketBase+ or Outputs; or (iv) your use of MarketBase+ or Outputs other than as authorised under these terms, or your breach of these terms. This clause 9.4 sets out your sole and exclusive remedies with respect to any claim of Intellectual Property Rights infringement arising from your use of MarketBase+.
- Your Indemnity. You indemnify and hold harmless IncNet against all third party claims against IncNet arising out of your use of MarketBase+ (subject to clause 4) and any Outputs, including without limitation any claim that an individual has been contacted despite registering on the Do Not Call Register (or similar register) or any claim based on a breach of the Spam Act 2003 (Cth) or any laws in any jurisdiction.
- Obligations that by their nature are continuing, will survive termination or expiry of these terms. Without limitation, the following clauses will survive: 4, 5, 6, 7.5, 7.6, 8.2, 9 and 10.2.
- Governing Law. The laws of Victoria, Australia, govern these terms and the parties irrevocably submit to the exclusive jurisdiction of the courts in Victoria, Australia.
- Severability. If a court of competent jurisdiction finds any part of these terms unenforceable, that part is severed.
- No Waiver. No waiver by a party is effective unless in writing and signed.
- Assignment. You may not assign any rights under these terms without IncNet’s prior written approval (and any attempt to do so will have no effect). IncNet may assign or novate these terms to a third party if reasonably required to effect a change of control, acquisition, sale of business or corporate restructure.
- Entire Agreement. These terms and any details about your Subscription made available online at the time of purchase constitute the entire agreement between the parties and supersede any prior discussions or agreements. Additional or different terms on your documents, communications, purchase orders or other extraneous material are expressly rejected and of no effect unless signed by IncNet.