The following general terms and conditions (“terms”) apply to the use of TCPinpoint. By using TCPinpoint (which includes this version and any other update or feature that we may provide) you agree to these terms, so you should read these carefully. If you do not accept these terms, you must refrain from using TCPinpoint.
In these Terms, the expressions “we”, “us” and “our” are a reference to TCPinpoint Pty Ltd ACN 611 968 006, and “TCPinpoint” is a reference to our services, our platform and our website. In these Terms, the expressions “you” and “The Customer” are a reference to The Customer.
“content” any text, graphics, photographs, trademarks, logos, sounds, music, artwork, computer code and other material used, displayed or available on the TCPinpoint website.
“platform” the software platform provided by us to users, whether through the website or otherwise.
“Engagement” an engagement between us and a user (“Engaged User”) who has accepted and agreed to SOW Terms in accordance with these terms.
“TCPinpoint Security Statement” the document (as amended from time to time) setting out certain information about TCPinpoint with respect to the security and storage of users’ data, among other things, and available at our website or upon request.
“services” the services, information and resources provided by TCPinpoint to users on or through the platform, including without limitation the SOW Services.
“SOW” the scope of works document or service level agreement, email or correspondence provided by us to certain users in relation to the provision of SOW Services by us for that user.
“SOW Services” the particular services or works set out in a SOW.
“SOW Terms” in relation to SOW Services, these terms and any terms and conditions set out in the relevant SOW.
“user” a person who completes TCPinpoint’s registration process, as described under the heading ‘User account password and security’ below, or otherwise uses the platform or the services, including without limitation an Engaged User.
“website” the websites operated by us at tcpinpoint.com and app.TCPinpoint.com.
User account password and security
Using TCPinpoint, or using any of our services, may require you to open an account. To do so, you must provide us with certain information about you and your business that we may request. By opening an account, you agree that all information you provide is accurate and up to date and does not infringe any other person’s rights. You must also update your account details if any of them change.
Registration is non-transferable. You are responsible for all of the activities that occur under your account. You should carefully choose your password and user name and protect them from unauthorised use. Please let us know immediately of any unauthorised use of your account or any other breach of security. We are not liable for any loss if someone else uses your password or account.
Information you provide to us
If you would like to know more about how we use, store or handle your personal information, please contact us.
Without limiting any other clause of the SOW Terms, if we become aware of, or have a reasonable suspicion that there has been any unauthorised access to, or disclosure or loss of, any personal information that has been collected from you by us, directly or indirectly, we must notify you immediately (“Data Breach”).
In the event of a Data Breach, we must co-operate with you or any appointed authority to provide information surrounding the circumstances of the Data Breach. You acknowledge that we will have the sole discretion with regards to the assessment of whether the Data Breach would be likely to result in serious harm to any individuals affected and the notification (if any) to the Privacy Commissioner, other regulator or law enforcement agency, or the affected individuals about the Data Breach.
We may, in our discretion, agree to offer you certain SOW Services with respect to your use of TCPinpoint by providing you with an SOW. You acknowledge that if we offer you any SOW Services, then the SOW Terms (being these terms and any terms and conditions set out in the relevant SOW) will apply to those SOW Services.
Your signature on the SOW or acknowledgement by email or any other electronic manner is acceptance of the SOW Terms. Until the SOW Terms are accepted, we reserve the right to vary or alter any part of the SOW Terms, including without limitation any fees specified in the relevant SOW.
You acknowledge and agree that we will carry out any SOW Services as described in a SOW in accordance with these terms.
The following conditions, in addition to any other SOW Terms, apply to any Engagement unless the relevant SOW specifically states otherwise in writing:
Term and Termination
The Engagement is for a fixed term of X months from X (“Commencement Date”) to XX (“Fixed Term”).
You may terminate the Engagement during the Fixed Term, by written notice to us, which must be given no less than 90 days before the next anniversary of the Commencement Date (“Termination Notice”). If you provide a Termination Notice under this clause, the Engagement and the SOW Terms will be at an end from the next X following the Termination Notice.
Fees on termination
Any accrued rights existing on termination or expiry (such as rights to claim payment for overdue amounts) are not affected by termination or expiry. Upon termination or expiry of an Engagement for any reason: (i) we will cease to provide the relevant SOW Services; (ii) the Engaged User will not be entitled to any refunds of any fees; (iii) we may delete any of the Engaged User’s data or information held or controlled by us within 60 days and (iv) the Engaged User will become immediately liable for any fees or expenses payable to us up to termination.
Fees payable upon early termination
Without limiting our rights under these terms or at law, if the Engagement is terminated before the end of the relevant Fixed Term as a result of either:
- the Engaged User breaching the SOW Terms; or
- the Engaged User otherwise terminating the Engagement,
then the Engaged User will remain liable to pay us any outstanding fees up to and including the date of termination, and agrees to pay all such amounts upon request from us. Where we are not in default, The Customer will pay our reasonable out-of-pocket expenses (supported by documentary evidence) incurred by us, directly attributable to the termination, and which we are unable to recover or mitigate.
Any invoices issued by us with respect to the SOW Services will be issued annually at the rate specified in the relevant SOW, and the Engaged User agrees to pay such invoices within 30 days of receiving the invoice.
We may make or release promotional or marketing material (whether in online or printed media) that refers or relates to the SOW Services and that the SOW Services were carried out by us to The Customer.
Neither we nor the Engaged User will disclose any information provided by the other party (“Disclosing Party”) regarding the Disclosing Party’s business that is confidential to any person, unless the Disclosing Party consents to the disclosure; that information comes into the public domain; or the party is required to disclose it by law or corporate governance, and provided always that either party may disclose such information to its employees, directors, investors, agents or contractors only to the extent necessary for the purposes of providing the SOW Services or carrying out its obligations under the SOW Terms.
Information and access
The Engaged User must generally respond to our communications in a timely manner and must, upon request, provide us with feedback, information, data and records, within the timeframes that we reasonably require, which we consider may be relevant to the SOW Services, as well as reasonable access to such persons as may be set out in the SOW or others involved in or connected with the Engaged User’s business as we reasonably require for the purposes of the SOW Services. The Engaged User agrees that we are not responsible in any way for the information provided or not provided by the Engaged User, and that we will not be liable in any way for such information provided or not provided.
The Engaged User agrees that we are a contractor independent of the Engaged User’s control and that the Engagement will not give rise to any fiduciary, agency, trust, employment or other relationship recognised at law or in equity as giving rise to forms of specific rights and obligations.
Subcontracting and personnel
The Engaged User agrees that we may subcontract to any suitably qualified person to perform all or part of our obligations under the SOW Terms, and may engage or employ any staff or personnel to carry out all or part of the SOW Services under the Engagement, without seeking the Engaged User’s consent or approval. If we employ any staff we will be solely responsible for all costs, taxes, payments (including PAYE, pay-roll and superannuation guarantee charge, workers compensation and leave entitlements) associated with employment of such staff.
If the Engaged User believes there is a defect in the SOW Services such that it does not comply, or cannot be used in accordance, with the SOW Terms, the Engaged User must notify us of the perceived defect. We may in our absolute discretion determine the classification of the defect having regard to the impacts set out in the service agreement table. Within the corresponding Response Time Goal (set out in these SOW Terms), we will use our best endeavours to respond to the request for rectification and, where appropriate, will take such measures as we deem reasonably appropriate to rectify the defect (including a work-around). We are not liable under this clause to the extent that the defect is caused by the Engaged User or a third party, including the failure the Engaged User or a third party to use the SOW Services in accordance with the SOW Terms.
Any revisions or additions in relation to the SOW Services must be agreed in writing by us, and if we agree to any revisions or additions, such agreement may be subject to you accepting a revised SOW.
Inconsistency and priority
If there is any inconsistency between these terms and the SOW, the provisions prevail to the extent of the inconsistency in the following order of priority: (i) SOW; (b) these terms.
The SOW Terms constitutes the entire agreement between us and the Engaged User and may not be varied or waived except to the extent agreed to in writing by both parties.
If you make any payments for using the services with a credit or charge card or an online payment account, you warrant that the billing information provided is accurate, and you authorise us to charge the designated credit or charge card or online payment account for the total amount of the payment, plus any GST. All payments and purchases made in connection with TCPinpoint are non-refundable.
Where applicable, you agree to pay all GST and other similar taxes imposed in connection with the supply of the use of TCPinpoint to you. You will only be required to pay an amount of GST if and when we provide a valid tax invoice in respect of the taxable supply. You are responsible for all internet service provider fees, telecommunication and other charges required for your connection to, or use of, TCPinpoint.
If you are not an Engaged User, we may suspend or terminate your access to our platform, our website and/or our services for any reason and without the need to provide reasons, including without limitation if we reasonably consider that you are in breach of any provision of these terms.
Outcomes and use
We have spent a significant amount of time developing and refining TCPinpoint and we are confident you will enjoy using TCPinpoint and will find it useful. However, we cannot promise or guarantee any specific outcomes from any services (including without limitation any SOW Services), or that using TCPinpoint is appropriate for your particular requirements.
As a user of TCPinpoint, you agree that it is your responsibility to ensure that any action you take in reliance on the services will comply with all relevant laws and regulatory requirements that apply to your business. All reliance on the services is at your own risk.
Relationship between users
You acknowledge and agree that you are solely responsible for any relationship, agreement or arrangements between you and another user, and you enter any transaction or dealings with any other user at your own risk. Users accept liability for any decision made or action taken in reliance on any information contained on or omitted from the website or the platform. We may facilitate the engagement between users, but we are not a party to any agreement or arrangement entered into by or between users.
We are not responsible for resolving or dealing with any disputes, disagreements or matters in relation to any dealings between users, and we are not obliged to be involved in such disputes, disagreements or matters in any way. If you have a dispute with one or more users, you release us (and our directors, employees and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known or unknown, arising out of or in any way connected with such disputes.
In TCPinpoint you may come across links or references to external merchants or suppliers or service providers. Please be aware that we do not make any promises about what they may supply to you. Therefore, any transaction you have with these merchants, suppliers or service providers are between you and these third parties, and we do not get involved. By accessing external website links to these merchants, suppliers or service providers and other sites through TCPinpoint, we do not promise that they are appropriate, that they work or that they are virus free.
Ads appearing on our website or platform may be delivered to users by advertising partners, who may set cookies. These cookies allow the ad server to recognise your computer each time they send you an online advertisement to compile non-personal identification information about you or others who use your computer. This information allows ad networks to, among other things, deliver targeted advertisements that they believe will be of most interest to you.
Changes to TCPinpoint
We may change or improve TCPinpoint at any time. For example, we may develop and distribute updates, enhancements or new features. We may also temporarily suspend TCPinpoint or modify its availability in any way to implement updates, enhancements or new features. We must give you prior notice of any such scheduled changes in the availability of TCPinpoint or certain features provided by TCPinpoint before they take effect.
We and our licensors (as applicable) own all intellectual property in TCPinpoint, including any updates, enhancements and new features we may provide.
We give you a personal, revocable, worldwide, royalty-free, non-assignable and non-exclusive licence to use such of our intellectual property rights to enable you to enjoy the benefits of using TCPinpoint. This licence is solely to enable you to use and enjoy TCPinpoint and you may not copy, modify, distribute, sell or lease any part of our intellectual property.
We own all TCPinpoint trademarks, branding and logos contained in, or relating to, TCPinpoint and you cannot use them for any purpose without our express written consent.
Ownership of user content
We may allow users to post, distribute or publish content on our platform. Users retain ownership of the content and information that they post.
As a user of TCPinpoint, you agree that you are solely responsible for any content or information that you have posted or otherwise provided in relation to TCPinpoint or the services. We do not guarantee any confidentiality or security in relation to any content or information posted. We do not endorse or take any responsibility for any content posted by any user. We do not share or represent the views or opinions of users of TCPinpoint.
You agree that you will only use TCPinpoint for lawful purposes. If you send or post information on or using TCPinpoint, you are responsible for anything that you send or post. You must not send or post anything that is offensive, against the law or which we think is inappropriate.
We may remove from TCPinpoint or refuse to display anything that we think is inappropriate in our absolute discretion.
Security and integrity
You must not violate the security of TCPinpoint in any way. We may suspend or cancel your TCPinpoint account or your access to TCPinpoint if we suspect any security violation. We may also inform any law enforcement body of any suspected unauthorised or criminal activity. Examples of security violations include:
- attempting to gain unauthorised access to any part of TCPinpoint, servers or system infrastructure you were not intended to have access to;
- use TCPinpoint in a way that was not intended by us;
- attempting to reverse engineer TCPinpoint or any system or offering provided throughTCPinpoint;
- interfering with or disrupting (or attempting to interfere or disrupt) any servers or networks connected to TCPinpoint;
- sending or storing any harmful code (including, for example, any computer virus, trojan, worm or other code that is harmful or disabling or which assists in or enables unauthorised access to or corruption of data); or
- using any feature of TCPinpoint or any other means to send unsolicited commercial correspondence to other users.
Breaches of these terms
We may investigate any suspected non-compliance with, or breach of, any provision contained in these terms and conditions for any reason.
We reserve the right to suspend or terminate a user’s right to access TCPinpoint, and if the user is an Engaged User then to suspend or terminate the relevant Engagement, if we reasonably believe that the user is in breach of a provision of these terms and/or any SOW Terms.
As a user of TCPinpoint, you warrant that you will not:
- through any act or omission knowingly mislead or deceive others (and in particular, other users). All information you provide must be accurate and true to the best of your knowledge, and you must update it as necessary;
- provide false information, create a false identity, or use or attempt to use another user’s profile; or
- defame, abuse, harass, stalk, threaten, breach the confidence of, or otherwise violate the legal rights of others (and in particular, other users).
TCPinpoint is a merely a platform intended to facilitate interaction between users, and is provided “as is” and “as available”. You acknowledge that any information available on or through TCPinpoint is intended to be general information only, and such information does not constitute professional advice.
Although TCPinpoint requires that users make certain warranties concerning the content they post, we do not endorse any user, or verify the accuracy of any information that any user may post via TCPinpoint. We do not conduct background checks on users. You acknowledge and agree that you will exercise all due care and caution in entering into any agreement with another user, and are solely responsible for such agreement.
As a user of TCPinpoint, it is your sole responsibility to assess the accuracy of all opinions, advice, services and other information provided or accessible via TCPinpoint.
By accessing and using TCPinpoint, you assume all risks associated with such access and use. You agree not to hold us responsible for things other users post or do.
Please note that as there are many factors beyond our control that may affect the performance or compatibility of TCPinpoint with certain software or hardware, we cannot promise that your use of TCPinpoint will be uninterrupted or error or defect free. While we use reasonable measures to ensure the accuracy and currency of data and information on our website and our platform, we are not responsible for the data and information supplied to or by users or third parties. We make no guarantee that the data on TCPinpoint is accurate or current.
To the maximum extent permitted by law, we (and our directors, employees and agents) do not accept any liability for, and you agree to release us from any claim in relation to any loss, howsoever caused, suffered or incurred by you arising directly from your use of TCPinpoint (including without limitation any consequential losses or damages) and any liability we owe is limited, to the maximum extent permitted under law, to the amount you paid to use TCPinpoint, or (if we choose) us providing the service again. The above limitation of liability will not apply to the extent that the loss was caused or contributed to by the willful or fraudulent act or omission of us (or our directors, employees and agents).
Indemnity and release
You agree to indemnify, defend and hold us (and our directors, employees and agents) harmless from and against all claims, liabilities, losses or expenses (including reasonable legal fees on a full indemnity basis) that arise from:
- any activity that you engage in, with or through our platform, our website or our services, including without limitation any information that you provide in relation to any services;
- any breach of these terms by you;
- any breach of any rights of a third party by you;
- any breach of any applicable law by you; or
- any transaction or other dealing between you and another person that arises from or through TCPinpoint.
The release and indemnity in this clause will be reduced proportionately to the extent that any willful or fraudulent act or omission of us contributed to the liability, costs, claims, liabilities, losses, expenses or damages.
If and to the extent any provision or part of a provision under these terms, or any SOW Terms, is void, voidable or enforceable, such provision or part of a provision will be severed and will not affect the continued operation of the remaining terms or SOW Terms (as the case may be).
These terms and any SOW Terms will be governed by the laws of South Australia and the users and us irrevocably submit to the exclusive jurisdiction of South Australia.
Feedback and reporting misconduct
We encourage all users to report any misconduct experienced while using TCPinpoint by contacting us.
If you have any questions about these terms or would like any further information, please contact Rachel Kidwell on 0439 863 216.