Adi Insights Inc. Commercial Terms and Conditions

Last updated: 4th October 2021

Definitions and Interpretations

“Authorised User” means Subscriber’s: employee, contractor, agent, franchisee, or any other individual or entity that directly or indirectly through another user accesses the Platform.

“External Integration” means any external third-party system that the Supplier has no control over, that the Subscriber or Authorised User has elected to integrate with the Platform.

“Platform” means the provision of and access to all or any part of Supplier’s proprietary software (also known as “Adi Insights”, “AdiClock”, “Adi Channels” or “Adi”).

“Services” means assistance provided (including subscriber support) by the Supplier to the Subscriber that may have associated fees.

“Subscriber Location” means an active Platform location.

Subscriber Data” has the same meaning as “Client Data” as defined in the Privacy Policy

“Supplier” Adi Insights Inc and it’s subsidiaries

In these Terms and Conditions, unless the context otherwise requires:

  • The singular includes plural and plural includes singular;

  • reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;

  • reference to a party includes that party’s personal representatives, successors and permitted assigns;

  • a provision must not be construed against a party only because that party prepared it;

  • a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed.

License

Subject to the Terms and Conditions, Supplier grants to Subscriber a personal, non-exclusive, non-transferable license to use the Platform solely for Subscriber’s business purposes and objectives.

Only Authorised Users that have accepted Supplier’s End User License Agreement (the “EULA”) may access the Platform. Subscriber must ensure that all Authorised Users do not disclose their username and password. Subscriber shall promptly notify the Supplier of any unauthorized Platform access and will cooperate with the Supplier in any legal action to prevent further unauthorized use.

Fees and Payment

In consideration of the rights and licenses granted to Subscriber in these Terms and Conditions, Subscriber shall pay Supplier, the fees (“Fee”) outlined in your Subscription Agreement.

Invoicing

On the recurring billing date of each calendar month, Supplier shall deliver to Subscriber a tax invoice showing the (a) platform fees for the immediately preceding month; (b) implementation fees, if any; (c) SMS fees for the previous month, if any; (d) support fees, if any; and, and, (e) total amount due. The amounts invoiced shall be due and payable by Subscriber to Supplier within seven days of the date of the tax invoice. Subscriber will use one of the payment methods supported by the Supplier. All amounts payable will be paid without setoff or counterclaim and without any deduction or withholding.

  • Tax invoices and other notifications are sent via email unless otherwise requested.

  • The first invoice is to be paid before commencement of the implementation phase.

If any amount is not paid to Supplier within 30 days of the invoice date, Supplier may at its option charge Subscriber interest on such unpaid amounts at the rate of 8% per annum or the maximum rate permitted by Law, until Subscriber is current on all fees.

If any fees are outstanding for more than 30 days past invoice date, Platform access will be suspended until all amounts owed are paid in full.

No Refund policy

There are no refunds. If you notify us in writing at any time after the commencement of your license that you do not wish to continue your use of the Platform then we will discontinue your access at the end of the period you have paid for. If you have an annual contract but have a monthly or quarterly payment arrangement, fees for full annual contract term are due at termination.

Temporary Suspension

Supplier may suspend Subscriber or any Authorised User’s right to access or use any portion or all of the Platform immediately if Supplier determines the Subscriber or an Authorised User’s use of the Platform:

  • are in breach of the End User License Agreement

  • Subscriber has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Subscriber assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

If Supplier suspends Subscribers right to access or use any portion or all of the Platform:

  • Subscriber remains responsible for all fees incurred during the period of suspension; and

  • Subscriber will not be entitled to any credits for any period of suspension.

Termination

Without limiting the right of a Party to immediately terminate these Terms and Conditions as provided for elsewhere herein, if either Party materially breaches any of its duties or obligations hereunder and such breach is not cured, and the breaching Party is not diligently pursuing a cure to the non-breaching Party’s reasonable satisfaction, within forty-five (45) calendar days after receipt of written notice of the breach, the non-breaching Party may terminate these Terms and Conditions for cause as of a date specified in such notice. Where Supplier has reduced or eliminated functionality in the Platform, and if such reduction or elimination materially and detrimentally affects the features or functionality of the Platform, then Subscriber, at Subscriber’s sole election and in Subscriber’s sole determination, may notify Supplier of such impact and if Supplier cannot remedy such impact within sixty (60) days thereafter, then Subscriber shall have the right to terminate these Terms and Conditions with sixty (60) days advanced written notice. A Party may terminate these Terms and Conditions if the other Party terminates or suspends its business, becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under Federal or State law.

Upon the termination of these Terms and Conditions, Subscriber shall promptly pay to Supplier all undisputed amounts due and payable hereunder, if any.

Any post-termination transition assistance requested from Supplier by Subscriber is provided at the Supplier’s entire discretion and is subject to these Terms and Conditions and any other terms agreed to by the parties. Fees payable for such transition assistance shall be agreed to by the parties.

Security and Data Privacy

Without limiting Supplier’s obligation of confidentiality as further described herein, Supplier shall take industry-standard measures to (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security of the Subscriber Data; (c) protect against unauthorized disclosure, access to, or use of the Subscriber Data; and (d) ensure that all employees, agents, and sub-contractors of Supplier, if any, comply with all of the foregoing.

Except to the extent caused by Supplier breach of these Terms and Conditions, Subscriber is responsible for all Authorised User and activities that occur, regardless of whether the activities are authorized by Subscriber or undertaken by Subscriber, Authorised User or an employee or a third party (including Subscriber contractors or agents), and Supplier is not responsible for unauthorized access of the Platform.

Subscriber is responsible for Authorised Users’ use of the Platform. Subscriber will ensure that all Authorised Users comply with its obligations under these Terms and Conditions and the EULA. If Subscriber becomes aware of any violation of Subscriber’s obligations under these Terms and Conditions caused by an Authorised User, Subscriber will immediately suspend access by such Authorised User.

You may cease to be able to access and use the Platform if you fail to download and install upgrades of the Modules that require access through a downloadable client when we make them available.

For more information regarding our handling of Subscriber Data please refer to the Adi Insights Privacy Policy

Technical Support

The Supplier will provide Subscriber with technical support for the use of the Platform, and will rectify defects in the Platform.  A “defect” arises if the Platform is not working in all material respects as specified in Supplier’s documentation. To access defect support, Subscriber agrees to provide Supplier with particulars of the defect in a format specified by Supplier and to provide Supplier with any required assistance in the diagnosis of the defect. Provided Supplier can reproduce the reported defect in an operating environment it considers suitable, Supplier will issue at its discretion one or more of the following remedies: (i) a defect correction; (ii) a bypass which temporarily or permanently provides an alternative similar function or solution; or (iii) a restriction which temporarily or permanently revokes the use of a function. Supplier may arrange for a contractor to provide technical support. Technical support is only available for the current standard release of the Platform at any time. Without limitation, defect support does not cover an alteration or modification to the Platform, improper use of the Platform, failure to comply with any of Supplier’s recommendations or requirements including any requests for assistance, use of the Platform with equipment or third parties’ programs or services other than those approved by Supplier, or supplying information available through training or in the user documentation. If a defect is not covered by technical support, Supplier will advise Subscriber of the estimated cost to address the issue.  Supplier shall not be obligated to fix such defect unless the parties have agreed to the terms in a written amendment.  Any services Supplier agrees to provide will be performed by suitably skilled personnel or contractors in accordance with reasonable professional standards. Supplier will endeavor to provide services in accordance with any agreed time frame but will not be responsible for any delay or interruption in our provision of any services.

Indemnity

Each Party (“Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party and its officers, directors, agents, and employees (each, an “Indemnitee“) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim,” and collectively, the “Claims“), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any error, negligence, or misconduct of the Indemnifying Party, its officers, directors, agents, employees, franchisees and their employees and subcontractors, during the performance of these Terms and Conditions, including, without limitation, Claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any payment required to be paid to subcontractors, if any, of Supplier; (c) any material misrepresentation or breach of warranty of any representation or warranty set forth in these Terms and Conditions; or (d) any material breach of any covenant set forth in these Terms and Conditions; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of an Indemnitee.

Indemnitee shall, promptly after receipt of a threat, notice, or filing of any Claim against it, give notice thereof to the Indemnifying Party.  The Indemnifying Party shall have sole control of the defense and of all negotiations for settlement of a Claim and the Indemnitees shall not independently defend or respond to a Claim.  At the Indemnifying Party’s request, the Indemnitees shall reasonably cooperate with the Indemnifying Party in defending against or settling a Claim; provided, however, that the Indemnifying Party shall reimburse Indemnitees for all reasonable out-of-pocket costs incurred by Indemnitees (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.

Miscellaneous

Governing Law. If you are located in the United States, this Agreement is made in accordance with and is subject to the laws of Delaware, and you irrevocably agree to submit all disputes in connection with this Agreement to the applicable courts in Delaware. If you are located in any other jurisdiction, this Agreement is made in accordance with, and is subject to, the laws of Victoria, Australia, and you irrevocably agree to submit all disputes arising in connection with this Agreement to the jurisdiction of the Victoria, Australia courts.

Severability. If any provision of these Terms and Conditions is held to be illegal, unenforceable or invalid, no other provision of these Terms and Conditions shall be affected thereby, and the remaining provisions of these Terms and Conditions shall be construed and reformed and shall continue with the same effect as if such illegal, unenforceable, or invalid provision was not a part hereof.

Waiver. Any waiver (express or implied) by either party of any default or breach of these Terms and Conditions shall not constitute a waiver of any other or subsequent default or breach.

Notices.  All notices or other communications required or permitted to be given pursuant to these Terms and Conditions shall be in writing via email and shall be considered properly given via email, and which shall be deemed to have been received only when receipt is acknowledged.

Notices to the Supplier shall be sent to: Attn: Adi Insights Inc. Legal team, email: legal@adiinsights.com

Notices to Subscriber shall be sent to the main account contact.

Counterparts. These Terms and Conditions may be executed in counterparts, each of which will be deemed an original and both of which together will constitute one instrument.

Force Majeure. Neither party hereto shall be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labour dispute, delay, failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, pandemic, voluntary or mandatory compliance with any Law or government request, act of God, or any act or omission or other cause beyond such party’s control.  If any such contingency shall occur, these Terms and Conditions shall be deemed extended by the length of time such contingency continues.

Independent Contractors. The parties hereto are independent contractors and neither party is an employee, agent, partner, or joint venture of the other.  Neither party shall have the right, nor shall either party attempt, to bind the other party, whether directly or indirectly, to any agreement with a third party or to incur any obligation or liability on behalf of such other party, whether directly or indirectly.

Headings. The headings stated in this Terms and Conditions are for convenience of reference only, shall not be deemed to be part of these Terms and Conditions, and shall not have any bearing on the construction or interpretation hereof.