Last updated: 1 June 2020
1. APPLICATION OF THESE GENERAL TERMS & CONDITIONS & THE PRODUCT TERMS
1.1 illion Australia Pty Ltd (ACN 006 399 677) or one of its Related Bodies Corporate (illion, we, us or our) will supply to you (Customer, you or your) our Services on the terms and conditions contained in these General Terms & Conditions & the Product Terms.
1.2 By using our Services, you agree to comply with illion’s T&Cs and you are bound by illion’s T&Cs from the date you click “I Accept”, “I Agree” (or words to similar effect).
2. SUPPLY OF SERVICES
2.1 We grant you a non-exclusive, non-sublicensable, non-transferable, revocable, limited licence to use the Service in the Territory for the Term solely for your internal business purpose and any other permitted purpose set out in the Product Terms (Permitted Purpose), subject to any terms set out in illion’s T&Cs (Licence).
2.2 You acknowledge and agree that (a) the Licence is not granted to any person other than you, and excludes your Related Bodies Corporate; and (b) you will not sub-contract, sub-licence, resell, transfer or otherwise grant access to a Service to any person, including your Related Bodies Corporate, except as expressly agreed by us in writing (in our sole discretion).
2.3 If we provide consent in accordance with clause 2.1, the other person must comply with illion’s T&Cs as if it were you and you will remain primarily liable for that person’s acts and obligations under illion’s T&Cs.
2.4 You acknowledge and agree: (a) the Services are subject to, and may be limited by, applicable laws and regulations (including Third Party Data terms), as amended from time to time; and (b) we will not provide Services to you if we reasonably believe that we are not permitted to by any law or regulation or by any agreement we have with a Third Party Data supplier.
3. YOUR USE OF THE SERVICES
3.1 You must not and must not attempt to (directly or indirectly):
(a) resupply, resell or repackage a Service;
(b) reuse, copy, download, upload, modify, translate, adapt, make any improvement or enhancement to or in any other way reproduce, a Service, except as reasonably required for the Permitted Purpose;
(c) permit any person (other than an Authorised User) to access or use a Service;
(d) incorporate any Information in a database, marketing list or report, except as reasonably required for the Permitted Purpose;
(e) use the Service to generate any statistical, comparative or other information that may be provided to any third party (including as the basis for providing recommendations to others), except as reasonably required for the Permitted Purpose;
(f) reverse engineer, derive the source code of, tamper with any Service;
(g) circumvent any technological measures that are designed to prevent unauthorised use or access to any part of a Service;
(h) engage in any form of systematic extraction of all or part of any Service, including the use of “screen-scraping”, “bots” and “spiders”;
(i) introduce, directly or indirectly, any virus, worm, trojan or other harmful or malicious code into any Service or otherwise corrupt, degrade or disrupt any Service;
(j) voluntarily produce any Information in legal proceedings, unless required by law; or
(k) identify us, our Related Bodies Corporate, a Service or our confidential publications as a source of reference
(l) use any Service in an unreasonable way or in a way that is unintended or contrary to the way we intended the Service to be used or in a way that is otherwise unfair or unacceptable (in our sole discretion, acting reasonably).
3.2 You must:
(a) use the Services only in accordance with applicable laws and regulations;
(b) implement and maintain industry best practice security measures and safeguards in relation to your computer systems, network and internet connectivity and the Services;
(c) restrict access to the Services to Authorised Users and you must provide us with an accurate written list of the Authorised Users from time to time;
(d) ensure a security identifier is issued to each Authorised User which must only be used by that Authorised User;
(e) keep all security and access credentials and identifiers confidential and secure and ensure they are not transferred between Authorised Users or disclosed to any other person;
(f) if you become aware that any security and access credentials and identifiers, account details or passwords have been compromised, without delay, notify us, change such passwords and credentials and take any other security action we reasonably direct;
(g) protect the Services from unauthorised use, alteration, adoption, modification, reproduction, access, publication and distribution;
(h) only use the Services on hardware, network and software that meets the minimum specifications notified by us to you; and
(i) comply with our policies and procedures and our reasonable directions notified to you from time to time. We will give you reasonable notice of any changes to our policies and procedures.
4. FEES, INVOICING & PAYMENT
4.1 We will notify you of the fees applicable to your Services (Fees) before you use a Service. We may notify the Fees on our website, during enrolment for a Service you request, in a price list, proposal or otherwise in writing.
4.2 You must pay us the Fees, plus any applicable tax, using any electronic means of payment that illion chooses to accept at any given time.
4.3 The Fees must be paid by the due date notified to you, in full without deduction, withholding, set-off or counterclaim.
4.4 If any Fees remain unpaid beyond their due date, we may (without limiting our rights or remedies and to the extent permitted by law): (a) immediately suspend or terminate the supply of any Service to you; (b) treat all outstanding Fees and amounts (Debt) as immediately due and payable; (c) charge interest at 1% per month on the Debt from the due date of payment until the date the Debt is paid; (d) take action to recover all Debt owing to us, including all costs and expenses incurred in recovering such amounts; (e) list information about the default with any credit reporting body; and (f) register or secure our interest in the Debt. You will not be entitled to any compensation during a period of suspension.
4.5 We may change our Fees from time to time by reasonable notice in writing to you.
5. CUSTOMER DATA
5.1 You must supply us with all data or information required to supply or maintain the Services, to perform our obligations under illion’s T&C’s or as we may reasonably specify from time to time (Customer Data).
5.2 You represent and warrant that: (a) you hold all necessary legal rights, title, consents and authority to provide the Customer Data to us and authorise us to use the Customer Data; (b) all consents and authorisations are freely given, informed and in accordance with the Privacy Laws; (c) your supply of the Customer Data will not infringe the Intellectual Property Rights of any person; (d) the Customer Data is complete, accurate, up to date and not misleading at the time it is provided; and (e) you will supply us with all information to correct and update the Customer Data from time to time and you authorise us to apply those corrections and updates.
5.3 Except to the extent required by law, we have no duty or obligation to verify, correct, complete, update, remove or delete any of the Customer Data.
5.4 You acknowledge that the quality of our Services relies on the Customer Data you provide to us. We will not be liable for any loss or damage arising from your failure or delay in providing the Customer Data or for any inaccuracy, omission or other defect in the Customer Data.
5.5 Where permitted by law, you grant us and our Related Bodies Corporate a non-exclusive, perpetual, irrevocable, transferable, royalty-free licence to use and sub-licence the Customer Data to supply our Services to you and to others, to otherwise fulfil our obligations under illion’s T&Cs, to validate and enhance our Services, update our databases and for any other lawful purpose.
6. INTELLECTUAL PROPERTY
6.1 Each party owns, and continues to own, all of its Intellectual Property Rights that existed at the commencement of this agreement under illion’s T&Cs (Pre-Existing IP). If any of your Pre-Existing IP forms part of any of our Services, you grant us a non-exclusive, perpetual, irrevocable, royalty-free licence to use and modify that Pre-existing IP only to the extent required to deliver the Services.
6.2 We, or our licensors, own all right, title and interest, including Intellectual Property Rights, in the Services at all times. We do not, at any time, transfer any ownership rights in the Services and we reserve all rights not expressly granted.
6.3 All right, title and interest, including Intellectual Property Rights, in any enhancements, variations, improvements or modifications to our Services (Enhancements) vest in us on creation.
6.4 If you acquire any Intellectual Property Rights in any of our Services or Enhancements, you assign those Intellectual Property Rights to us with effect from acquisition, and agree to do all things reasonably required by us to give effect to such assignment.
6.5 The Services may include our brand, logo, trade mark, copyright notice or other proprietary marking. You must not copy, use or mask those items without our prior written consent.
6.6 (D-U-N-S® Numbers) D-U-N-S® Numbers are unique numeric serial numbers which identify a company and which are proprietary to and controlled by The Dun & Bradstreet Corporation. We grant you a non-exclusive, revocable, limited licence to use D-U-N-S® Numbers (excluding linkage D-U-N-S® Numbers) solely for identification purposes and only for your internal business use. Where practicable, you must refer to the number as a “D-U-N-S® Number” and state that “D-U-N-S®” is a registered trademark of The Dun & Bradstreet Corporation.
7. ELIGIBLE DATA BREACH
7.1 Each party warrants to the other party that it has and will maintain in accordance with industry standards: (a) systems to detect and report when an event has occurred that may give rise to reasonable grounds to suspect an Eligible Data Breach has occurred; and (b) a system to investigate and assess a suspected Eligible Data Breach within the period prescribed by law of becoming aware of a suspected breach, including a documented procedure for making an evaluation of each investigation.
7.2 If a party becomes aware of a suspected Eligible Data Breach in connection with a Service, then in accordance with the applicable laws relating to Eligible Data Breaches, the party must promptly do whatever is necessary to contain the suspected breach.
7.3 If an Eligible Data Breach occurs, the parties must as soon as reasonably practicable: (a) notify the other party of the breach; (b) cooperate to minimise any loss or damage of each party, including loss of, or damage to, goodwill or reputation; (c) consult with each other prior to any external communications; and (d) cooperate to implement any remedial and preventative actions and to the extent reasonably necessary to ensure compliance with Privacy Laws.
8. CHANGES TO SERVICES
8.1 We may withdraw, vary, reconfigure, add to, modify, substitute or otherwise change a Service due to market demand, any change in applicable law or regulation, any change in technology or security requirements or where a third party changes the terms upon which it supplies its Third Party Data to us.
9. THIRD PARTY DATA
9.1 Our Services may incorporate products, services, data or information that is provided to us by third parties, including stock exchanges, government agencies, and publicly available information sources (Third Party Data). You must comply with all Third Party Data provider’s terms as may be referred to in illion’s T&Cs, on our website or as otherwise notified to you.
9.2 To the maximum extent permitted by law, we exclude all responsibility and liability for any Third Party Data, including any inaccurate, incomplete, out of date or unavailable Third Party Data.
10. WARRANTIES & COMPLIANCE WITH LAWS
10.1 Each party warrants to the other party that it: (a) has the legal power and authority to enter into illion’s T&Cs; (b) has the legal right, title, consent and authority to perform its obligations under illion’s T&Cs; and (c) will comply with all applicable laws and regulations, including Privacy Laws and AML/CTF Laws.
10.2 You warrant to us that: (a) if you are excluded from the operation of all or part of any Privacy Laws, you will comply with those Privacy Laws (including any applicable credit reporting provisions) as if you were bound; and (b) your disclosure of Personal Information to us is accurate and complies with all applicable Privacy Laws.
10.3 We are a reporting entity as defined in the Modern Slavery Law and, as such, comply with the Modern Slavery Law.
11. NO IMPLIED WARRANTIES
11.1 All Services are supplied to you on an “as is” and “as available” basis.
11.2 Where we supply Services to you online, the services are supplied over communication links and other networks, and the availability of the Services rely on the availability of those links and networks. We are not responsible if the links or networks are unavailable at any time, and we do not guarantee that services supplied online will be continuously available.
11.3 We will not be liable for non-performance or delays due to compliance with applicable laws, regulations or Third Party Data terms.
11.4 You are solely responsible for any decision made or not made by you in relation to any Service.
11.5 To the maximum extent permitted by law, any representation, warranty, condition, guarantee, term or undertaking that would be implied into illion’s T&Cs by legislation, common law or otherwise, including any implied terms, conditions or warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy, is excluded from illion’s T&Cs.
11.6 Nothing in illion’s T&Cs excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Consumer Laws or any other applicable law that cannot be excluded, restricted or modified (Non-Excludable Obligation). To the maximum extent permitted by law, our liability for a breach of a Non-Excludable Obligation is limited, at our option, to the cost of supplying the Services again or payment of the reasonable cost of having the Services supplied again.
12. INDEMNITY
12.1 Each party (indemnifying party) indemnifies the other party (indemnified party) for any liability, loss or damage which the indemnified party suffers or incurs arising out of or in connection with any claim, suit, action, demand or proceeding brought by a third party arising out of or in connection with the indemnifying party’s breach of: (a) clause 6 (Intellectual Property), clause 10 (Warranties & Compliance with Laws), clause 7 (Eligible Data Breach) or clause 14 (Confidentiality); or (b) where you are the indemnifying party, clause 2 (Supply of Services), clause 3 (Your Use of the Services), clause 5 (Customer Data) and clause 9 (Third Party Data).
12.2 An indemnified party must promptly give written notice to the indemnifying party of any third party claim and must allow the indemnifying party to conduct the defence and settlement of that claim (provided the indemnified party is not detrimentally impacted).
13. LIMITATION OF LIABILITY
13.1 To the maximum extent permitted by law, our total aggregate liability to you or to any other person for any loss, damage or liability arising out of or in connection with illion’s T&Cs is limited to an amount not exceeding the lesser of: (a) AU$100,000; and (b) the total of all amounts paid by you to us during the 12 month period immediately preceding the date on which the related cause of action giving rise to the claim arose.
13.2 No party will be liable for any indirect, special or consequential loss or damage or for any loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of use of data or loss of or damage to reputation.
13.3 Each party must take all reasonable steps to mitigate any loss or liability which it might suffer or incur (including under an indemnity).
14. CONFIDENTIALITY
14.1 Each party must keep all Confidential Information confidential and may only use the other party’s Confidential Information in accordance with illion’s T&Cs.
14.2 Nothing in clause 14.1 prevents a party from disclosing Confidential Information: (a) to its Related Bodies Corporate or its and their Personnel on a ‘need to know’ basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with illion’s T&Cs; (b) if disclosure is reasonably required to enable a party to perform its obligations or enforce its rights under illion’s T&Cs; or (c) if disclosure is required by law, the rules of a stock exchange or Regulator (but only to the extent required).
15. MONITORING & ACCESS
15.1 You agree that we may electronically monitor (through your IP address, cookies or otherwise) your use of the Services, including to ensure compliance with illion’s T&Cs, our security requirements and to prevent fraudulent use. You must ensure your Personnel and Authorised Users consent to such monitoring.
15.2 You permit us, on reasonable notice, to inspect any location where our Services are accessed, used, stored or transmitted. We will not exercise this right more than once every 12 months, unless you are in breach of illion’s T&Cs, if there is an Eligible Data Breach, if required by law or for other any reasonable reason.
16. CO-OPERATION WITH REGULATORS
16.1 You agree to provide us (at your cost) with reasonable co-operation in the handling of disputes, complaints, investigations or litigation involving a third party that arises as a result of your actions or use of our Services.
16.2 If, as a result of your actions or use of our Services, a Regulator makes lawful enquiries, carries out an investigation, or takes any action (Inquiry) which obliges us to provide assistance or information, we will (at your cost) provide assistance and information to the Regulator to the extent we are legally obliged to do so.
17. TERM & TERMINATION
17.1 Our agreement to supply the Services to you under illion’s T&Cs will continue until one of us gives 30 days’ written notice to the other to terminate the agreement (Term).
17.2 We may immediately suspend or terminate any part of our Services or illion’s T&C’s without prior notice if: (a) you have or we reasonably suspect you have breached, or you are reasonably likely to breach, a term of illion’s T&C’s or applicable law; (b) you are not permitted to use the Services for any reason (including by way of contract, law or otherwise); or (c) you suffer an Insolvency Event.
17.3 If any restriction is placed on us by law that limits or prohibits us from exercising a right under illion’s T&Cs due to you suffering an Insolvency Event (Restriction), we will not enforce the right during the period prescribed by the Restriction, any extended period ordered by a court and any other time required by the Restriction, except to the extent that the Restriction does not apply to our exercise of that right.
17.4 On termination, expiry or suspension of a Service or illion’s T&Cs: (a) the Licence granted by us in respect of that Service is automatically revoked; (b) you must immediately cease using the Service; and (c) you must promptly delete or destroy all originals and copies of the Service and our Confidential Information, and certify to us in writing that you have done so if we request it.
17.5 Termination or expiry of illion’s T&Cs will not affect any rights accrued prior to such termination or expiry.
18. GENERAL
18.1 (Governing Law) illion’s T&Cs are governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria.
18.2 (Notification) You must promptly notify us of any breach of illion’s T&C’s.
18.3 (Other Terms) By using any of our Services, you agree to be bound by our Terms of Use, Privacy Policy and any other policies and procedures notified to you from time to time.
18.4 (Amendments) We may vary illion’s T&Cs and Other Terms and will provide you with reasonable written notice.
18.5 (Entire Agreement) illion’s T&C’s and the Other Terms constitute the entire agreement of the parties about its subject matter and supersedes all previous agreements and understandings.
18.6 (Assignment & subcontracting)
(a) You must not assign, novate, subcontract or transfer illion’s T&Cs, including to your Related Body Corporate, without our prior written consent (which may be withheld in our sole discretion).
(b) You acknowledge and agree that we may assign or novate illion’s T&C’s to any of our Related Bodies Corporate or in connection with a merger, consolidation or reorganisation of our assets and we may subcontract the performance of some of our obligations.
18.7 (Change of control) After the date of this agreement, any acquisition, merger or similar arrangement (in whole or in part) by Customer of, or any acquisition, merger or similar arrangement (in whole or in part) of Customer by, companies with an existing illion contract (Acquired/Acquiring Companies) will not be included this agreement. Unless otherwise agreed in writing by illion (in its sole discretion), Acquired/Acquiring Companies will continue to receive illion products & services pursuant to the terms and conditions of any agreement between that Acquired/Acquiring Company.
18.8 (Notices) Any notice, demand or other communication to be served on a party must be in writing. Notices sent by post will be deemed received at the end of 3 Business Days after posting, and notices sent by email will be deemed received on the date and time that the email was sent (as evidenced in the sender's email sent history). Notices received after 5pm on a Business Day will be deemed received on the next Business Day.
18.9 (Force majeure) No party will be liable to the other for non-performance or delays (other than a failure to pay) caused by an external event beyond the parties’ reasonable control. In such event, both parties will use reasonable endeavours to minimise delays or interruptions.
18.10 (Severability) If any part of illion’s T&Cs is illegal or unenforceable, it will be severed and the remaining terms will continue in full force and effect.
18.11 (Continuing warranties) The warranties given under illion’s T&Cs are given with effect from the date of this agreement and at all times during the Term.
18.12 (No adverse construction) Nothing in illion’s T&Cs is to be interpreted against a party solely on the ground that the party put forward or drafted that document.
18.13 (Waiver) A single or partial exercise or waiver of a right relating to illion’s T&Cs does not prevent any other exercise of that right or the exercise of any other right.
18.14 (Survival) Any provision of illion’s T&C’s, which is by its nature a continuing obligation, will survive termination.
18.15 (Relationship) Nothing in this agreement creates any partnership, joint venture or employment relationship between the parties.
18.16 (Non-exclusive) You agree there are no restrictions on us to provide Services to any other person.
19. INTERPRETTATION
Unless the context otherwise requires: (a) headings are for convenience only and do not affect interpretation; (b)a reference to legislation includes all regulations, orders, instruments, codes, guidelines or determinations issued under that legislation or and any modification, consolidation, amendment, re-enactment, replacement or codification of it; (c) a reference to dollars or $, is a reference to Australian dollars; (d) a reference to a person includes an individual, corporation or other body corporate, partnership, trust, joint venture, unincorporated body, government agency or other entity, whether or not it comprises a separate legal entity; (e) the words “include” or “including”, or similar expressions, are to be construed without limitation; the words “include” or “including”, or similar expressions, are to be construed without limitation; (f) a reference to “terms” includes conditions; (g) a reference to a party to includes that party’s successors and permitted assigns and substitutes; and (h) a word importing the singular includes the plural and vice versa.
20. DEFINITIONS
The following definitions apply in these General Terms & Conditions, unless the context otherwise requires:
AML/CTF Laws means applicable laws relating to financial transaction reports, anti-money laundering and counter-terrorism financing.
Authorised User means any person, including Personnel, who has a need to access or use a Service on your behalf.
Business Day means Monday to Friday, excluding public holidays in Melbourne, Victoria.
Confidential Information means all information that could be reasonably regarded in the circumstances as confidential, including information which relates to the business, interests or affairs of a party, the terms of illion’s T&Cs, the Services and Intellectual Property Rights, but excludes information which is: (a) in the public domain, other than as a result of a breach of illion’s T&Cs; (b) independently developed or acquired by a party; (c) Customer Data once that Customer Data forms part of any Services or is supplied to us; or (d) in the possession of a party prior to the commencement of illion’s T&Cs without any obligation of confidentiality.
Consumer Laws means applicable laws relating to consumer protection, including provisions set out in Schedule 2 of Competition and Consumer Act 2010 (Cth)(Aus).
Eligible Data Breach means a material data breach under the Privacy Laws or involving Personal Information.
illion's T&Cs means these General Terms & Conditions and the Product Terms.
Information means any information provided by us to you in connection with a Product or Service, including information provided as data output, documentation or compilation of information.
Insolvency Event means an event of insolvency, including bankruptcy; the appointment of an insolvency administrator, manager, receiver or liquidator; any action related to winding up or making a material arrangement in relation to creditors; applying for any type of protection against creditors; being unable to pay its debts as they fall due; or taking or suffering any similar or analogous action in any jurisdiction as a consequence of debt.
Intellectual Property Rights means all intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trademarks, designs, patents, inventions, databases, discoveries, circuit layouts, copyright (including source code), rights in software, Confidential Information, know-how, business names, domain names, all analogous rights and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
Modern Slavery Law means the Modern Slavery Act 2018 (Cth) (Aus) and any other equivalent laws of any Australian State or Territory.
Personal Information has the meaning in the applicable Privacy Laws.
Personnel means directors, officers, employees, agents and contractors.
Privacy Laws means all legislation, principles, industry codes and policies, as amended or replaced from time to time, which relate to the collection, use, disclosure, storage or granting of access rights to Personal Information, and includes the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth)(Aus) and the privacy laws of each other country in which Personal Information is received, collected, held, used or disclosed by a party in connection with the Services, as applicable.
Privacy Policy means our Privacy Policy from time to time available at illion.com.au/privacy-policy.
Product means a product supplied by us to you as part of the Services.
Product Terms means the specific terms & conditions that apply to the Products & Services we supply to you. The Product Terms are available here Product Terms
Regulator means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or the Services;
Related Body Corporate means where a body corporate is: (a) holding company of another body corporate; or (b) a subsidiary of another body corporate; or (c) a subsidiary of a holding company of another body corporate; or (d) controlled by, under common control with, or controls, another body corporate, the first-mentioned body and the other body are related to each other.
Service means a service supplied by us to you and includes the supply of any Product, Information and Software.
Software means a software, computer program, application, software-as-a-service, including updates, new releases, specifications, documentation and media supplied by us to you, including by local installation or remote access.
Terms of Use means the terms of use applicable to our Services from time to time available at illion.com.au/terms-of-use or at such other applicable illion website.
Territory means Australia.