Last Updated: September 3, 2024
1. About Us
1.1. We are Blueberry Agency Pty Ltd trading as MoveData, a company registered in Australia (“we” and “us”). Our registered office is at Level 10/418A Elizabeth St Surry Hills NSW 2010 Australia.
1.2. Please read this Terms of Service carefully. They govern your access and use of MoveData’s technology services available after logging into your Account, MoveData APIs and any updates, upgrades, modified versions, extensions, improvements, and derivative works of the foregoing.
1.3. This Terms of Service apply to the order by you and supply of Services by us to you. They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.4. Regarding any issue related to and connected to this Terms of Service, we can be contacted at legal@movedata.io. We will endeavour to respond to your email as soon as possible. Please be informed that we are only able to give clarifications and explanations, we are not able to provide professional or legal advice.
2. Definitions and Interpretations
2.1. As used in this Terms of Service, the following words and terms shall have the meanings ascribed to them below with words in the singular deemed to include those in the plural and vice versa:
| Term | Definition |
| Account | Means your MoveData account that you register and open in order to access and use the Services |
| Affiliate | Means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity |
| Agreement or Contract | Means this Terms of Service (and all terms and policies incorporated into it), your contract for the use of our services and/or the use of the Services |
| Documentation | Means the user documentation relating to the Service as provided by us and which can be found in our knowledge base, and may be updated by MoveData from time to time |
| Early Access Release | Means any alpha, beta, developmental, test, experimental, and/or early-access features of the Service |
| Free Trial | Means a limited period during which you are granted access to the Services at no cost to allow you evaluate the service’s features, functionality, and suitability before deciding whether to purchase a subscription |
| Free Trial Period | Means the 30-day period (or other period as determined by us or mutually agreed to by the parties) that you are authorised to access and use the Free Trial, commencing on the first day that the Free Trial is activated by MoveData for your use |
| Fees or Subscription Fees | Means the charges applicable to your use of the Service in accordance with the applicable package as contained in our Pricing page |
| Feedback | Means all suggestions, enhancement requests, recommendations, or other feedback regarding the Service |
| MoveData or “we” or “us” | Means Blueberry Agency Pty Ltd trading as MoveData, a company registered in Australia with our registered address at Level 10/418A Elizabeth St Surry Hills NSW 2010 Australia |
| Order | Means a request from you to use the Services e.g. by requesting a subscription to our Services |
| Order Confirmation | Means a confirmation of the receipt of your request to purchase subscription to our Services |
| Party | Means either you or MoveData |
| Parties | Means both you and MoveData collectively |
| Services | Means the subscription services provided by MoveData and available to be subscribed to (including any updates, upgrades, modified versions, extensions, improvements, and derivative works of the foregoing), particularly as described in the Documentation |
| Subscription Term | Means the period to which you have subscribed to the Services as selected by you when subscribing to the Services |
| Subscription Confirmation | Means a confirmation email sent to you, showing our acceptance of an Order and the commencement of your Subscription Term |
| Third Party Services | Means any third-party service, connection, website, platform, application, software or integration that interoperates with the Service |
| Usage Information | Means information and data, including metadata, relating to the provision, use, and performance of various aspects of the Service, Third Party Services integrations, and related systems and technologies, including information concerning your use of the various features and functionality of the Service and your Account, and analytics and statistical data derived therefrom |
| User | Means anyone using our Services as authorised by you, including but not limited to employees, contractors, etc., on behalf of the organisation for whatsoever reason. The organisation subscribed to the Services will also be qualify as a “User” under this Agreement. |
| User Content | Means any User Data, information, or material originated by you that you transmit through the Service to your Account or through your Account |
| User Data | Means any data that is input, uploaded, generated, stored, or otherwise processed by a User in connection with their use of the Services |
| You or Your | Means a User (which includes the organisation subscribing to the Services). It can individually mean any of the Users or collectively mean all of the Users. It is accepted in all contexts. |
2.2. References
2.2.1. Any reference to a statutory provision shall be construed as a reference to:
2.2.1.1. Any statutory modification or re-enactment thereof (whether before or after the date hereof) for the time being in force;
2.2.1.2. All statutory instruments or orders made pursuant thereto; and
2.2.1.3. Any statutory provisions of which that statutory provision is a re-enactment or modification.
2.2.2. Any reference to a document or this Terms of Service shall include a reference to any amendment, replacement, notation or supplement to that document or this Terms Service but excluding any amendment replacement, notation or supplement made in breach of this Terms of Service.
2.2.3. Paragraph headings are inserted for ease of reference and convenience and shall not be construed as forming part of this Terms of Service or used in the interpretation of any Article hereof.
2.2.4. Words denoting the singular shall include the plural and vice versa.
2.2.5. Words denoting persons shall include corporations, partnerships, sole traders’ firms and organisations and vice versa.
2.2.6. Words denoting any gender shall include all genders.
3. Acceptable Use of the Services
3.1. No securities violations or network abuse
You may not (and may not facilitate or allow others to) access or use the Services or any third-party integrations made available via the Services that:
3.1.1. Adversely impacts the availability, reliability or stability of the Services or any third-party apps which integrate with the Services and related systems, network or data;
3.1.2. Not take actions to bypass our security measures or gain unauthorized access to our content or any other User’s Content, reverse engineer or take apart our Services;
3.1.3. Launches or facilitates, whether intentionally or unintentionally, a denial of service attack on the Services or on any third party;
3.1.4. Attempts to or successfully bypasses, tampers with, breaks or circumvents any security mechanism on the Services or any third-party apps integrated with the Services;
3.1.5. Poses a security or service risk to the Services, to any user of the Services, to any third-party integrations made available via the Services, or to any third party;
3.1.6. Tests the Services in order to find limitations, vulnerabilities or evade filtering capabilities; or
3.1.7. Uses manual or electronic means to avoid or bypass any use limitations placed on the Services.
3.2. No wrongful or malicious use
You may not (and may not facilitate or allow others to) access or use the Services or any third-party integrations made available via the Services:
3.2.1. In ways that misrepresents you, or disguises the origin of any content (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implies any sponsorship or associating with MoveData or any third party)
3.2.2. In ways that may subject MoveData or any third party to liability, damages or danger;
3.2.3. In ways that violates (or facilitates the violation of) any applicable third-party policies or requirements
3.2.4. In ways that violates or facilitates the violation of any local, state, federal, or foreign law or regulation (including data privacy and export control laws)
3.2.5. To promote or engage in any activity that exploit images or the likeness of minors, incite physical harm or violence against others, or is illegal, fraudulent, defamatory, libelous, obscene or threatening;
3.2.6. To harvest or collect content about others without their express consent;
3.2.7. To generate or send unsolicited communications, advertising, promotions or solicitations (also known as spam)
3.2.8. To solicit MoveData users for commercial purposes, unless expressly permitted by us;
3.2.9. By registering an account on the Services using an email of a throw-away email address provider; or
3.2.10. To create or use an account on the Services for competitive evaluation or research.
3.3. No Illegal or Harmful Content
You may not (and may not facilitate or allow others to) transmit, store, post, share, or otherwise provide any Content on or through the Services that:
3.3.1. Infringes MoveData’s or a third party’s intellectual property or other rights, including but not limited to, any copyright, trademark, patent, trade secret, moral rights, rights of publicity, rights of privacy, or any other intellectual property right or proprietary or contractual right;
3.3.2. Contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs or code;
3.3.3. You or others don’t have the right to transmit, store, post, share, or otherwise provide;
3.3.4. Is or promotes the harassment, intimidation, the abuse of or the unjust discrimination against others based on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status (“Hateful Content”);
3.3.5. Is illegal, defamatory, libellous, obscene, exploits images or the likeness of minors, fraudulent, threatening, or incites physical harm or violence against others; or
3.3.6. Could otherwise cause damage to MoveData or any third party.
3.4. No promoters of hateful content
You shall not use the Services, create an account on the Services, or transmit, store, post, share, or otherwise provide any Content on or through the Services if:
3.4.1. You are an organisation that has publicly stated or acknowledged that its goals, objectives positions or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage or sponsor hateful content; or
3.4.2. You are a person who has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organisation described immediately above, that could be reasonably perceived as hateful content.
3.4. User Data
Any User Data or User Content introduced into the Services by you must conform to appropriate and lawful standards of accuracy, decency and lawfulness. In particular, you warrant and undertakes that any User Data and User Content shall at all times be:
3.4.1. Submitted lawfully and without infringement of any intellectual property rights of any person;
3.4.2. Free of any Virus (at the point of entering any of the Services or MoveData systems);
3.4.3. Factually accurate;
3.4.4. Provided with all necessary consents of all relevant third parties;
3.4.5. Not abusive, threatening, offensive, harassing or invasive of privacy;
3.4.6. Free of any content or activity that is, or may reasonably be suspected to be, terrorist in nature;
3.4.7. Not racist, sexist or xenophobic;
3.4.8. Not of a nature that any courts, regulators, law enforcement authorities or other governmental authorities may order be blocked, deleted, suspended or removed; and
3.4.9. Unlikely to cause offence, embarrassment or annoyance to any person.
3.6. In addition, you agree not to, directly or indirectly
(i) Modify, translate, or create derivative works based on the Service, or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service;
(ii) Use or access the Services to build or support, and/or assist any third party in building or supporting, products, or services competitive to MoveData;
(iii) Remove any proprietary notices or labels from the Service; or
(iv) otherwise use the Service outside of the scope of the rights expressly granted herein.
You agree to use the Service only for your own internal organisational operations, and not to transfer, distribute, sell, republish, resell, lease, sublease, licence, sublicense, white label or assign the Service or use the Service for the operation of a service bureau or time-sharing service.
3.7. We may, but do not assume the obligation to, investigate violations or alleged violations of this section 3, and without affecting any other remedies available to us, (1) remove any violating User Content or use, and/or (2) permanently or temporarily terminate or suspend your Account or access to the Services, without notice or liability if we (at our sole discretion) determine that you have violated this section 3.
3.8. By using the Services, you agree to indemnify, hold harmless and defend MoveData and its subsidiaries, Affiliates, shareholders, officers, directors, agents, licensors, suppliers, other partners, employees, and representatives from any claims, damages, losses, liabilities, and all costs and expenses of defence, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with your use of the Services, including but not limited to
(i) Acts and/or omissions on or off the Services;
(ii) Violation of any rights of another, including without limitation any alleged infringement of intellectual property or other right of any person or entity relating to the Services;
(iii) Breach of this Agreement;
(iv) Use and/or misuse of the Services, including without limitation any User Data, User Content and/or materials thereon;
(v) Violation of any applicable law or regulation;
(vi) Inaccurate, untimely, incomplete or misleading User Data, including without limitation with respect to registration, profile or eligibility;
(vii) Misstatements and/or misrepresentations;
(viii) Use of links to Third Party Services, including without limitation such services’ availability, terms, privacy policy, data, content, materials, products and/or services;
(ix) User Data and any acts or omissions with respect to such User Data; and/or
(x) Use of any information in third-party reports. You further agree that you will cooperate as requested by us in the defence of such claims.
We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Users, and you shall not in any event settle any claim or matter on our behalf without our written consent.
4. Your Account and Security of Your Account
4.1. To use our Services, you need to have opened an account with us. Your account is opened by installing MoveData into your Salesforce environment.
4.2. When you open an Account, you will be provided with a dashboard where you can see the details of your subscription, your activities on MoveData, your use of the Services and all things related and connected to your interaction with the Services.
4.3. We collect selected information when registering an Account with us. The safety and protection of your information are managed in accordance with our Privacy Policy.
4.4. You are obligated to provide accurate and complete information when registering an Account or when interacting with us through any means whatsoever. It is your responsibility to provide accurate information to us at all times. You must ensure that your Account is updated and accurate at all times. You are responsible for your Account.
4.5. Access to your account is through your Salesforce platform. We also do not have access to your Salesforce account (unless you explicitly grant access to your Salesforce environment to MoveData) nor are we able to see your activities on Salesforce other than that which is related to your use of the Services.
4.6. The confidentiality of your Account and its activities are your sole responsibility. Any suspicion of any unauthorised use of your Account should be reported to us immediately by sending an email to support@movedata.io. Please note that we may refer you to Salesforce if we find the vulnerability is with your Salesforce account.. You agree to notify us immediately of any unauthorised use of your Account or any other breach of security. We will put in place security measures that are in line with our Technical and Organisational Measures available in our Data Processing Addendum.
4.7. We cannot and will not be liable for any loss or damage arising from your failure to protect your Account.
4.8. You hereby represent that you are not impersonating another person or being fraudulent. You undertake that you will not use another organisation’s Account, solicit, collect or use the login credentials of other Users, nor will you give your login information to another organisation to use.
4.9. As a User, you hereby represent, warrant, and covenant that you have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside.
4.10. As a User, you must refrain from carrying out criminal activities with your Account, violate any law, breach a contract or a legal duty, offer illegal rewards, violate this Agreement and any of our other terms as incorporated into these Agreement.
4.11. You agree to not share your Account (or account details) with anyone outside your organisation nor will you sell, transfer, license or assign your Account or any account rights to third parties.
4.12. We reserve the discretion and right to terminate, monitor, suspend, delete or ban the Account of any User or organisation. We have no obligation to give any reason or explanation for such action. We take these actions for MoveData’s benefits.
4.13. You can delete your Account and thereby permanently terminate your access to our Services by sending us an email at support@movedata.io or raising a support ticket here.
4.14. You agree that we are not responsible for any loss or damages arising from the failure to comply with this section 4 above. We may terminate, suspend or take any action against your Account for violation of any terms of this Agreement.
5. Free Trial
5.1. MoveData offers a Free Trial use of the Services. This free use is subject to this Agreement and is only solely during the Free Trial Period, MoveData hereby grants to you, and your Users, a non-exclusive, non-transferable, sub-licensable, limited and revocable licence to access and use the SaaS Service and the user guides, technical manuals, and other end user documentation for the Services and the Documentation during the Free Trial Period.
5.2. You shall not create multiple Accounts to take advantage of the Free Trial offering.
5.3. MoveData reserves the right to limit certain functionalities of the Free Trial without notice to you.
5.4. You acknowledge and agrees that, at the end of the Free Trial Period (including any mutually agreed upon extension), your access to the Trial Services will be automatically terminated, with or without notice, unless you elect to convert the Free Trial use of the Services to a subscription licence on a paid subscription basis in line with the Subscription Fees contained in section 7 below.
6. How to make Orders for our Subscription Services
6.1. You can make an order for the Services by contacting us at support@movedata.io or using our contact us page. It is your responsibility to ensure that you check the Order details so please check it carefully before making your Order request. When you place an Order, you may receive an Order Confirmation email. Please note that this does not mean that your Order has been accepted. Your Order constitutes an offer to us to use the Services. It is only accepted when you receive a Subscription Confirmation from us. All Orders are subject to availability and acceptance by Us. Such will be communicated to you within 48 hours. We reserve the right to reject any Order for any reason we deem fit. The order rejection notice will be communicated to you, and we will refund to your original medium of payment, any payment made to us.
6.2. The Subscription Confirmation will confirm our acceptance of your Order and will include details of your subscription to the Services (your subscription start date, your subscription details, and your renewal date), the Subscription Fees, including applicable sales tax and your billing cycle.
6.3. When you purchase a subscription to the Services, you are responsible for making sure that the payments for the Subscription Fees are made.
6.4. Unless you downgrade or cancel your subscription prior to expiration of your current Subscription Term, your subscription will automatically renew for another Subscription Term on the same plan and for a period equal to your then current Subscription Term. All renewals are subject to the applicable Service continuing to be offered. You can cancel your auto-renewal by contacting us at support@movedata.io or explore the limited cancellation privileges as contained in our Refund Policy.
7. Subscription Fees and Payment Provisions
7.1. You will pay the Subscription Fees for the use of the Services. The Fees are as stated in our Pricing Page.
7.2. You shall on the subscription commencement date provide us with a valid, up-to-date and complete credit or debit card details, direct debit details or any other approved payment information as requested by us (including relevant valid, up-to-date and complete contact and billing details), to allow us charge you for the Services.
7.3. If you choose to pay through a credit or debit card, or through direct debit, and you provide your card or direct debit details to us, you hereby authorize MoveData to bill such credit card or direct debit in the manner contained 7.4 below
7.4. Regardless of your payment method, we will invoice you for the Subscription Fees payable:
7.4.1. In respect of the initial Subscription Term:
immediately we issue the Subscription Confirmation, and
7.4.2. In respect of other renewal period:
on the start date of each renewal period which will be the anniversary of the Subscription Term.
Unless agreed in writing by MoveData, all invoices shall be paid within 7 days of the date of such invoice. Payment shall not be deemed to have been made until we have received cleared funds in respect of the full amount of your Subscription Fees for the Services.
7.5. If we do not receive payment after 7 days (either because the credit or debit card payment request is rejected, the direct debit fails or you fail to make payment in line with section 7.4 above) after the due date, and without prejudice to any other rights and remedies that we may have:
7.5.1. we may, on no less than 14 days’ notice to you and without any liability owed to you, disable your account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
7.5.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 2% over the then current base lending rate of the Reserve Bank of Australia from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
7.6. All amounts and fees stated or referred to in this Agreement:
7.6.1. Shall be payable in the currency stated on our Pricing Page; and
7.6.2. Are non-cancellable and non-refundable except in the manner stated in our Refund Policy
7.7. We shall be entitled to increase the Subscription Fees in line with its published pricing as contained in its Pricing Page, such increase shall become effective from the relevant renewal date.
8. Proprietary Rights
8.1. MoveData Service
You acknowledge and agree that MoveData and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
8.2. Your Intellectual Property
You agree that you will be totally responsible for all the User Content you create using the Services. You warrant that you have the right to create the User consent and that you have the right to all materials used for the creation. You also warrant that it is in line with our Acceptable Use terms in section 3. All User Content and the intellectual property rights subsisting therein, unless specifically labelled otherwise, belong to or have been licensed to you. All User Content is protected by applicable Australia and international intellectual property laws and treaties. You may not copy, distribute, publicly perform, publicly display, reproduce or create derivative works based upon another User’s Content without first obtaining the express consent of the User to whom the User Content in question belongs.
8.3. Feedback
MoveData welcomes Feedback. If you provide us with any Feedback, you hereby grant to us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate such Feedback and all intellectual property rights in such Feedback into the Services and/or other MoveData products, services, or offerings without any obligation, royalty, or restriction based on intellectual property rights or otherwise. For the avoidance of doubt, we make no guarantee or representation as to whether any of your Feedback will actually be incorporated or otherwise used by MoveData.
8.4. Improving the Service
Notwithstanding anything to the contrary set forth herein or otherwise, we have the right (but not the obligation) to collect, analyse, and use Usage Information and aggregated data (that does not include personal data). With respect to the rights above, MoveData may use Usage Information and aggregated data to improve and enhance the Services, develop new products and/or services, and otherwise in connection with its business.
8.5. Trademarks
MoveData, the MoveData logo, and all MoveData product names are trademarks and/or services marks of MoveData, and third-party logos and product names are trademarks and/or service marks of third parties. Nothing in this Agreement shall be construed as granting any licence or right to use any MoveData or third-party trademark without the applicable prior written consent of MoveData or the owner of the third-party trademark. You hereby grant MoveData the right to identify you as a client of MoveData and to use your logos and/or trademarks for that purpose.
9. Third Party Services
9.1. The Service may contain links to and integrations with Third Party Services (including but not limited to Salesforce). MoveData provides such links to and integrations solely as a convenience, has no responsibility for the content or availability of such Third-Party Services, and does not endorse such Third-Party Services (or any products or other services associated therewith). Access to any Third-Party Services linked to the Service is at your own risk, and MoveData is not responsible for the accuracy or reliability of any information, data, opinions, advice, or statements made by, on, or through such Third-Party Services. Any fixing or supporting of new or changed functionality in third party services is at MoveData’s sole discretion. Your use of any Third-Party Services is subject to the terms applicable to such Third-Party Service. We recommend that you should refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third-Party Services
9.2. You acknowledge and agree that you are responsible for any initial and ongoing reviews and/or quality control audits as to the information produced by you to the Services. The result of the Services will be linked to the User Data supplied to it by you. MoveData is not responsible for monitoring or remediating any errors or omissions produced by your use of the Services. You may engage MoveData to introduce functionality into your use of the Service and the terms for this engagement can be found in our Professional Services Agreement.
9.3. You acknowledge and agree that your Account and Usage Information regarding your use of a Third-Party Service integration through your Account may be shared with that Third Party Service. We may also share your User Content with a specific Third-Party Service which you linked to your Account in order to prevent or resolve service, security, support, or technical issues related to that Third Party Service.
10. Termination and Suspension
10.1. We reserve the right to terminate or suspend your Account and/or the Services to you at any time and for any reason upon notice to you. If we terminate or suspend your Account without cause, we will refund a prorated portion of your monthly prepayment. We will not refund or reimburse you if we terminate your Account for cause, including (without limitation) for a violation of this Agreement.
10.2. Once you terminate your Account, your User Content and Account will be deleted unless we are required by law to keep it. If you do not log in to your Account or do not have any active integrations for twelve (12) or more months, we reserve the right to designate your Account as “inactive” and delete your Account and/or all the data associated with it. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement. All sections of this Terms of Service which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
11. Service Warranty
If you are paying Subscription Fees (this warranty does not extend to Free Trial Users), MoveData warrants to you that we will provide the Services during the Subscription Term substantially as described in the Documentation under normal use. In the event of any breach of this warranty, your exclusive remedy will be our reperformance of the deficient Service or, if we cannot reperform such deficient Service as warranted, you may terminate your Account and we will refund a prorated portion of your unused Subscription Fees. You must notify us in writing of any warranty deficiency within ten (10) days from receipt of the deficient Service in order to receive the foregoing warranty remedy.
12. DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IMMEDIATELY ABOVE, THE SERVICE IS PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MOVEDATA MAKES NO WARRANTY THAT THE SERVICE IS COMPLETE, SUITABLE FOR YOUR PURPOSE, RELIABLE, USEFUL, OR ACCURATE. ON BEHALF OF ITSELF AND ITS LICENSORS, MOVEDATA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, STATUTORY, OR OTHER WARRANTIES WITH RESPECT TO THE SERVICES OR THE AVAILABILITY OF THE FOREGOING, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOU ARE RESPONSIBLE FOR ANY INITIAL AND ONGOING REVIEWS AND/OR QUALITY CONTROL AUDITS AS TO THE INFORMATION PRODUCED BY YOU TO THE SERVICES. THE RESULT OF THE SERVICES WILL BE LINKED TO THE USER DATA SUPPLIED TO IT BY YOU. MOVEDATA IS NOT RESPONSIBLE FOR MONITORING OR REMEDIATING ANY ERRORS OR OMISSIONS PRODUCED BY YOUR USE OF THE SERVICES. YOU ARE RESPONSIBLE FOR ANY INITIAL AND ONGOING REVIEWS AND/OR QUALITY CONTROL AUDITS AS TO THE INFORMATION PRODUCED BY YOU TO THE SERVICES. THE RESULT OF THE SERVICES WILL BE LINKED TO THE USER DATA SUPPLIED TO IT BY YOU. MOVEDATA IS NOT RESPONSIBLE FOR MONITORING OR REMEDIATING ANY ERRORS OR OMISSIONS PRODUCED BY YOUR USE OF THE SERVICES.THE ENTIRE RISK AS TO RESULTS OBTAINED THROUGH USE OF THE SERVICE RESTS WITH YOU. MOVEDATA AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY LOSSES OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF OR RELIANCE ON ANY MATERIAL CONTAINED ON THE SERVICES. MOVEDATA MAKES NO REPRESENTATION OR WARRANTY THAT THE AVAILABILITY OF THE SERVICE WILL BE UNINTERRUPTED, THAT THE SERVICES WILL BE ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
13. Indemnity
13.1. You shall defend, indemnify and hold harmless MoveData against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and/or Documentation, provided that:
13.1.1. You are given prompt notice of any such claim;
13.1.2. You provide reasonable co-operation to us in the defence and settlement of such claim, at your expense; and
13.1.3. You are given sole authority to defend or settle the claim.
13.2. We shall defend you, your officers, directors and employees against any claim that the your use of the Services or Documentation in accordance with this Agreement infringes any Australia patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgement or settlement of such claims (subject to the provisions of section 14.3.2), provided that:
13.2.1. We are given prompt notice of any such claim;
13.2.2. You do not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation MoveData in the defence and settlement of such claim, at our expense; and
13.2.3. MoveData is given sole authority to defend or settle the claim.
13.3. In the defence or settlement of any claim, MoveData may procure for you, the right to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
13.4. In no event shall MoveData, its employees, agents and subcontractors be liable to you to the extent that the alleged infringement is based on:
13.4.1. A modification of the Services or Documentation by anyone other than MoveData; or
13.4.2. Your use of the Services or Documentation in a manner contrary to the instructions given to you by us; or
13.4.3. Your use of the Services or Documentation after notice of the alleged or actual infringement from MoveData or any appropriate authority; or
13.4.4. Your breach of this Agreement.
13.5. The foregoing and section 14.3.2 states your sole and exclusive rights and remedies, and MoveData (including MoveData’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
14. Limitation of Liability
14.1. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT:
14.1.1. YOU ASSUME SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM YOUR USE OF THE SERVICES AND THE DOCUMENTATION, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. MOVEDATA SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY USER CONTENT, INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO US BY YOU IN CONNECTION WITH THE SERVICES, OR ANY ACTIONS TAKEN BY MOVEDATA AT YOUR DIRECTION;
14.1.2 ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT; AND
14.1.3. THE SERVICES AND THE DOCUMENTATION ARE PROVIDED TO YOU ON AN “AS IS” BASIS.
14.2. NOTHING IN THIS AGREEMENT EXCLUDES MOVEDATA’S LIABILITY:
14.2.1. FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; OR
14.2.2. FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
14.3. SUBJECT TO SECTION 14.1 AND SECTION 14.2,
14.3.1. MOVEDATA SHALL HAVE NO LIABILITY FOR ANY: (A) LOSS OF PROFITS, (B) LOSS OF BUSINESS, (C) WASTED EXPENDITURE, (D) DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, (E) LOSS OR CORRUPTION OF DATA OR INFORMATION, OR (F) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES; AND
14.3.2. MOVEDATA’S TOTAL AGGREGATE LIABILITY TO YOU (INCLUDING IN RESPECT OF THE INDEMNITY AT SECTION 13.2), IN RESPECT OF ALL BREACHES OF DUTY OCCURRING WITHIN ANY CONTRACT YEAR SHALL NOT EXCEED THE CAP. IF BREACHES COMMITTED IN MORE THAN ONE CONTRACT YEAR GIVE RISE TO A SINGLE CLAIM OR A SERIES OF CONNECTED CLAIMS, MOVEDATA’S TOTAL LIABILITY FOR THOSE CLAIMS SHALL NOT EXCEED THE SINGLE HIGHEST ANNUAL CAP FOR THOSE CONTRACT YEARS.
14.4. IN SECTION 14.3(B):
14.4.1. THE CAP MEANS THE LESSER OF 100% OF THE TOTAL SUBSCRIPTION FEES PAID IN THE CONTRACT YEAR IN WHICH THE BREACHES OCCURRED, OR THE INSURANCE COVER AS STATED IN SECTION 14.5.
14.4.2. CONTRACT YEAR MEANS A 12-MONTH PERIOD COMMENCING ON THE EFFECTIVE DATE OR ANY ANNIVERSARY OF IT.
14.5. MOVEDATA HAS OBTAINED INSURANCE COVER REGARDING ITS LEGAL LIABILITY FOR INDIVIDUAL CLAIMS NOT EXCEEDING AU20,000,000 PER CLAIM FOR PUBLIC/PRODUCT LIABILITY. THE LIMITS AND EXCLUSIONS IN THIS SECTION REFLECT THE INSURANCE COVERAGE MOVEDATA HAS BEEN ABLE TO ARRANGE. YOU ARE RESPONSIBLE FOR MAKING YOUR OWN ARRANGEMENTS TO INSURE ANY EXCESS LOSS.
14.6. REFERENCES TO LIABILITY IN THIS SECTION 14 INCLUDE EVERY KIND OF LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING BUT NOT LIMITED TO LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION OR OTHERWISE.
14.7. NOTHING IN THIS AGREEMENT EXCLUDES YOUR LIABILITY FOR ANY BREACH, INFRINGEMENT OR MISAPPROPRIATION OF THE MOVEDATA INTELLECTUAL PROPERTY RIGHTS.
15. Our Security and Data Privacy Practices
15.1. Data Protection Obligations
MoveData’s Data Processing Addendum and Privacy Policy are hereby incorporated into and made a part of this Terms of Service by this reference. They shall apply to the extent to which MoveData processes personal data.
15.2. Security
We have implemented and maintain physical, technical, and administrative security measures designed to protect the Services and User Content from unauthorised access, destruction, use, modification, or disclosure. For more information, please see our technical and organisational measures as contained in our Data Processing Addendum.
16. Other Provisions
16.1. Severability
In the event that any provision of this Agreement is held to be invalid or unenforceable in whole or in part, all other provisions will continue to be valid with the invalid and unenforceable parts severed from the remainder of this Agreement.
16.2. Amendment
MoveData may revise this Terms of Service from time to time by posting a modified version of the terms including their effective date. If we make material changes to this Terms of Service, we will provide you with reasonable notice prior to the new Terms of Service taking effect. By continuing to access or use the Services at your next renewal period after the posting of any modified Terms of Service, you agree to be bound by such modified Terms of Service. If the Terms are amended during an active subscription, the terms in force during the start of the Subscription Term shall be binding.
16.3. Notices
Unless otherwise stated in this Terms of Service or any other relevant part of our Website or your dashboard, all notices and other communications shall be in writing and delivered by electronic mail. For MoveData, the applicable email address is legal@movedata.io unless another email address is provided to you. For you, the email address will be the email address provided by you when registering for an account or contacting us.
16.4. Waiver
No single or partial exercise of a right or remedy provided by this Agreement or by law prevents MoveData from the exercise of any right or remedy. A waiver of a breach of this Terms of Service does not constitute a waiver of a subsequent or prior breach of this Terms of Service.
16.5. Governing Law
This Terms of Service, the jurisdiction clause contained in it and any non-contractual obligations arising out of or in connection with it or its subject matter or formation are governed by, construed and take effect in accordance with the laws of New South Wales, Australia.
16.6. Export Controls
You hereby represent, warrant, and covenant that you understand and acknowledge that components of the Service may be subject to export, re-export, and import restrictions under the laws of New South Wales, Australia.
16.7. Compliance to Laws
You shall be solely responsible for the accuracy, quality, content, and legality of User Content, and any actions triggered by User Content. You represent and warrant that (i) you have obtained all necessary rights, releases, and permissions to transmit User Content through the Services and for any actions triggered by User Content on the Services, and to otherwise use, process, and/or store User Content on the Services used or stored and (ii) User Content, and its transmission, processing, storage, and use as you authorise in this Agreement or through your Account will not violate any laws or regulations, this Agreement or the terms of any applicable Third Party Services.
16.8. Monitoring and Enforcement
We reserve the right, but do not undertake the obligation, to monitor the Services, investigate, and take appropriate action against any Party that uses the Services in violation of applicable law or this Agreement, including but not limited to, the right to remove, or delete any User Content. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions could endanger the operation of the Services or other Users, we may suspend your access or remove your User Content immediately without notice. We have no liability to you for accepting, removing, or deleting your User Content.
16.9. Force Majeure
Neither Party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this Agreement by giving five days written notice to the affected Party.
16.10. Confidentiality
16.10.1. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Service. Confidential Information is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, as well as non-public business, product, product roadmap, technology, and marketing information. If something is labelled “Confidential,” that is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
16.10.2. The Receiving Party will (i) take at least reasonable measures to prevent the unauthorised disclosure or use of Confidential Information, and limit access to those employees, affiliates, and contractors who need to know such information in connection with the Service, provided, they are bound to confidentiality obligations at least as restrictive as those in this Agreement; and (ii) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Services and this Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, such advisors are bound to confidentiality obligations at least as restrictive as those in this Agreement.
16.10.3. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
16.11. Dispute Resolution
Notwithstanding the provisions of 16.11 for any and all grievances, disputes, claims, or controversies you may have against MoveData (“Disputes”), before pursuing any dispute resolution avenue, you must first give us an opportunity to resolve the dispute informally by sending an email to legal@movedata.io with the subject “Pre-Action Dispute Notice”. The email should contain your name, your email address as registered on your account (if you have no account, please state that), a detailed description of your grievance and claims, and a description of the specific relief you seek and how we can resolve this grievance. if we do not resolve the dispute within forty-five (45) days after receiving your pre-action dispute notice, then you may pursue resolution of the dispute in accordance with section 16.12.
16.12. Jurisdiction
Subject to section 16.11, the parties agree that any dispute arising out of or in connection with this Agreement or the performance, validity or enforceability of it will be finally resolved by the courts of New South Wales, Australia, who have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
16.13. CLASS ACTION WAIVER
THE PARTIES AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER PARTY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, OR IN ANY PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. THE PARTIES FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF THE PARTIES, AND ALL OTHER PARTIES TO ANY SUCH PROCEEDING.
16.14. Headings
The paragraph titles in this Terms of Service are for convenience only and shall not define or limit any of the provisions hereof.
16.15. Assignment
Neither party may assign or delegate any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign the terms of this Agreement in their entirety, without the other party’s consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets.
16.16. No Third-Party Beneficiaries
The Services and this Agreement are intended to be and are solely for the benefit of MoveData and you, and do not create any right in favour of any third party.
16.17 No Partnership
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.18. Entire Agreement
This Agreement and the policies or terms expressly referenced and incorporated into this Terms of Service constitute the entire agreement and understanding between the Parties concerning the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by you to place orders or otherwise effect transactions hereunder, which such terms are hereby rejected. The Terms in this Agreement supersede all prior or contemporaneous discussions, proposals, and agreements between you and MoveData relating to the subject matter hereof.
17. Contacting Us
You can reach us a legal@movedata.io. You can also contact us through our registered address, Level 10/418A Elizabeth St Surry Hills NSW 2010 Australia.