By creating a user and/or business space in the CostMiner cloud-based software system (System) Customer agrees to be bound by the Agreement. If Customer does not want to be bound by this Agreement, they should not create a user or business space.
Use of the service
CostMiner grants to Customer a non-exclusive, non-transferable and subject to this Agreement right to use the System.
CostMiner accepts no liability or responsibility for any actions by Customer.
CostMiner will not make any changes to Customer's data stored by the System unless Customer has authorised these changes or the Agreement has been terminated.
CostMiner accepts no liability or responsibility for unauthorised access or modification of Customer's data stored in System caused by improper use of the security mechanisms provided by System, including but not limited to disclosing passwords to unauthorised parties, not making commercially reasonable effort to keep passwords secure and confidential or giving unauthorised parties access to the System.
CostMiner in not responsible for Customer's data content and their activity in the System.
Customer is billed individually for each business space they have created in the System.
To decide whether the System meets Customer's requirements, they can create a new business space in the System and access it free of charge for 1 month from the day when the business space was created.
After the free trial period has ended, Customer pays service fee (Fee) for the remaining part of the month in which the trial ended and for each following month by placing orders through the System. An order sets out a Billing Period and the Fee payable for that period. The Billing Rules that define Billing Periods and how the Fee is calculated are published on the CostMiner website.
CostMiner can, without any notice or liability to Customer, at CostMiner’s sole discretion, change the Billing Rules.
If Customer has not paid the Fee for a Billing Period, CostMiner can suspend Customer's access to the respective business space until the Fee is paid.
CostMiner can remove the business space from the System and destroy all Customer's data associated with that business space after 2 months from the start of the first Billing Period for which Fee was not paid.
Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).
The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.
Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Discloser, was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, is received from a third party without breach of any obligation owed to Discloser, or was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order.
The software, workflow processes, user interface, designs, know-how, and other technologies provided by CostMiner as part of the System are the proprietary property of CostMiner, and all right, title and interest in and to such items, including all associated intellectual property rights, remain with their respective owners. CostMiner reserves all rights unless expressly granted in this Agreement.
Customer may not sell, resell, rent or lease the System.
Term and Termination
This Agreement continues until Customer or CostMiner closes the Customer business space.
If either party breaches this Agreement, the other party may terminate this Agreement at the end of a written 30-day notice period, if the breach has not been cured.
Upon termination of this Agreement for any reason, Customer must pay CostMiner any unpaid amounts.
CostMiner may temporarily suspend Customer's access to System or remove the applicable Customer's data, or both, if it in sole discretion acting reasonably believes that, as part of using the System, Customer has violated a law. CostMiner will attempt to contact Customer in advance before CostMiner suspends access to the System.
Collection of data
CostMiner will handle Customer's data in accordance with the Privacy Statement published on CostMiner's website.
Disclaimer of Warranty
The System is provided "AS IS" without warranty of any kind. CostMiner and its suppliers and contractors disclaim and make no express or implied warranties and specifically disclaim the warranties of merchantability, fitness for a particular purpose and non-infringement of third-party rights. The entire risk as to the quality and performance of the System is with the Customer. Neither the CostMiner nor its suppliers and contractors warrant that the functions contained in the System will meet Customer's requirements or that the operation of the System will be uninterrupted or error-free.
CostMiner is not obligated to provide any updates to the System.
Limitation of liability
CostMiner's entire liability and Customer's exclusive remedy under this Agreement shall not exceed the Fee paid for using the System for the previous 12 months, if any. In no event shall the CostMiner or its suppliers or contractors be liable for any damages whatsoever (including, without limitation, incidental, direct, indirect special and consequential damages, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or inability to use the System, even if CostMiner has been advised of the possibility of such damages or any claim by a third party.
If any third-party brings a claim against CostMiner or any of its suppliers or contractors related to Customer’s acts, omissions, data or information within the System, Customer must defend, indemnify and hold CostMiner and its suppliers and contractors harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
Governing law and jurisdiction
The laws of Australia govern this Agreement. Any dispute arising out of or related to this Agreement must be exclusively brought in a court of competent jurisdiction in Australia.
Amendment of System and Terms
CostMiner can, without notice and at CostMiner’s sole discretion, without any notice or liability to Customer, terminate Customer’s right to use the System.
CostMiner can, without any notice or liability to Customer, make changes to the System or terminate the System or any part of the System.
CostMiner can amend this Agreement as CostMiner sees fit. If Customer does not approve of any amendments or modifications, then Customer must quit using the System.
Unless CostMiner is advised otherwise by you in writing, it may refer to you as to its customer and a user of the System in its marketing materials and on its web site. The references may be made by name, trade name and trademark, logo and by briefly describing your business.
This Agreement constitutes the entire Agreement between the parties and supersedes any prior or contemporaneous negotiations or Agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding.
Customer may not assign or transfer the Agreement or Customer's business space to a third party, unless as part of a merger or sale of substantially all the assets of Customer.
If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.
Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive.
The parties have agreed that this Agreement and the related documents be drawn up in the English language.