Clearwater Communications Terms and Conditions

Clearwater Communications Pty Limited Terms and Conditions (“the Agreement”)

Clearwater Communications Pty Limited (A.C.N 143 378 821) “Clearwater” provides the entity contracting to this Agreement (“the Entity”) with a report (“the Report”) on the following terms and conditions. By downloading, opening, or reading the Report the Entity accepts these terms and conditions and agrees to perform its obligations under this Agreement.

The Report

  1. The Report is a document containing statistical and graphical observations based on collection of data from multiple sources. The Report may be used to make comparisons between online stores, online media, entities, products, prices promotions or other items as the case may be. While the Report can be used for other purposes, Clearwater does not warrant nor guarantee the Report’s suitability for these other purposes.
  2. Reports to which this Agreement applies are produced at weekly intervals. Data is observed over the week to produce an analysis from which the Report is based.
  3.  The contents of the Report may be varied from time to time. The Entity cannot rely on past reports as an indicator of the contents of the Report produced in accordance with this Agreement. The Report is provided on an “as is” basis.
  4. The observations from which the Report is compiled are collected from a set of multiple internet sources and website links. As a minimum, Clearwater investigates sources which can be found are outlined in the reports.
  5. While Clearwater monitors internet media and online store websites, Clearwater will not be held responsible for any omissions of data or information from the Report, which arise from sources that are not contained in the source list.
  6. The contents data or information obtained from these sources may have changed from the original time of collection. The Entity acknowledges that the Report is based on observations compiled at their respective times and recognises that the Report may not take into account changes to source information since the original time of collection.

Consideration

  1. The Report is provided in consideration of the fee received by Clearwater (“the Fee”). The Fee may be paid by the Entity or agent on the Entity’s behalf.
  2. Clearwater reserves the right to withhold the release of the Report to the Entity until such time the Fee is paid in full.
  3. The Fee is prescribed at the rates found at http://clearwatercommunications.com.au/online-retail-tracker-request-form/ or as agreed in writing with an authorised representative of Clearwater.
  4. In the event Clearwater does not receive cleared funds within 14 business days from issuing the Report to the Entity, Clearwater reserves the right to engage a collection agency or legal service provider. In this event, the Entity agrees to pay Clearwater’s costs of collection of the Fee and any expenses incurred by Clearwater in collecting the Fee.

Warranties, limitations and liabilities

  1. These are the only terms and conditions which are binding upon Clearwater with the exception of those otherwise agreed in writing by Clearwater, and imposed by a statute such as the Competition and Consumer Act 2010 (Cth) which cannot be excluded.
  2. Except as provided in this Agreement, Clearwater makes no other warranty of any kind, express or implied, statutory or otherwise, including without limitation to warranties of merchantability, fitness for a particular use and non-infringement.
  3.   To the extent permitted by applicable law, Clearwater will not be liable for the Entity’s loss of revenue, or indirect, incidental, exemplary or punitive damages, even if Clearwater or its subsidiaries and affiliates have been advised of, knew or should have known that such damages were possible.
  4.  In no event will Clearwater be liable to the Entity in contract, tort or otherwise, for any direct or indirect loss or damage that may arise under this Agreement.
  5. In the case of emails, Clearwater is not responsible for any viruses, and/or other malicious software which is incidentally or accidentally transmitted. While it is Clearwater’s policy to carry out virus checks, no warranty is made that these emails are free from viruses and other malicious software.
  6. Clearwater relies on third parties to provide services. For clarity, Clearwater is not liable to the Entity for not performing its obligations under this agreement due to the cessation of a third party’s service, the cessation being temporary or otherwise, and/or intentional or unintentional.
  7. The Entity acknowledges that Clearwater relies upon information provided by third parties. This information does not represent the view of Clearwater or its employees and agents unless specifically stated. The Entity will not hold Clearwater responsible for any information or opinion provided by the source.
  8. Clearwater uses its subjective judgment to measure each source in accordance with a proprietary rating system. The Entity acknowledges that Clearwater provides this subjective judgment and will not hold Clearwater responsible for such judgment.
  9. The Entity indemnifies Clearwater against all damages, losses, costs and expenses incurred by Clearwater arising out of the use of the Report by the Entity.

 

Intellectual Property

  1. The Report and the Intellectual Property Rights in the Report are, and will remain the property of Clearwater.
  2. Without limiting clause 19, the Entity agrees not to (and not to allow any third party to):    Distribute, view, or use the Report;    Copy, modify, or adapt the Report;    Translate the Report without express written permission from Clearwater;    Reverse engineer, or decompile the Intellectual Property rights; and    Remove, obscure, or alter any notice of copyright, trademark, or disclaimer that appears on the Report.
  3. Where the Entity allows a third party to view, or use the Report, knowingly, accidentally, or incidentally, the Entity indemnifies Clearwater against all damages, losses, costs and expenses incurred by Clearwater arising out of the use of the Report by that third party.

General

  1.  This Agreement is governed by the laws applicable in New South Wales (Australia).

Privacy

  1. Clearwater do not collect personal information for the purposes of providing the Report and for other internal procedures.
  2. Clearwater may disclose the Entity’s information to a third party where Clearwater is legally required to do so, or when it is necessary for Clearwater to carry out the terms of this Agreement.