TabLogs

1.

Background
Thank you for visiting our Terms of Use (Agreement), we are Tablogs Pty Ltd ACN 627 957 608 of 7 Ella-Marie Drive, Coolum Beach QLD 4573 (We, our, us and other similar terms). We provide geotechnical borehole logging software known as Tablogs (Tablogs).

This Agreement outlines the terms and conditions associated with your use of Tablogs. It is your obligation to ensure that you have read, understood and agree to the most recent terms available at www.tablogs.com.au (Website).

2.

Agreement

2.1

Accepting this Agreement
By accepting a Quote from us, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Tablogs.

You may accept a Quote by returning a signed (including electronic) copy of the Quote, issuing us with a purchase order, by contacting us and advises of your acceptance of the Quote, instructing us to make available Tablogs to your users or begin providing any Technical Services.

If you accept a written quote or proposal on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein.

2.2

Special Conditions
This Agreement may contain Special Conditions as set out in the Quote. Special Conditions operate as terms in addition to terms contained in this Agreement. If there is any inconsistency between any Special Condition and any other term contained in this Agreement the effect of the Special Condition prevails over any inconsistent term to the extent of that inconsistency.

2.3

About this Agreement
Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 18.1. They aid to clarify the terms and conditions. Please feel free to email us at declan@tablogs.com.au if you have any questions.

3.

Term

3.1

Subscription Period
This Agreement will commence on the date specified on any Quote we provide to you and will continue for the Subscription Period or until the date of termination of this Agreement in accordance with clause 16.

3.2

Automatic renewal
If this Agreement is not terminated in accordance with clause 16, prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.

4.

Licence
We grant you a non-transferrable, non-exclusive and revocable licence to access to the core Tablogs software and, any additional Modules set out on the Quote, for the Subscription Period, subject to the terms and conditions of this Agreement..

We reserve the right to limit or suspend your licence to access Tablogs if you fail to pay the Subscription Fee, or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this Agreement. Suspending your account will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay the Subscription Fee.

5.

Technical Services
Where Technical Services are requested, and upon receipt of the Technical Service Fee, we will liaise with you and create plan for the delivery of the Technical Services and provide such services in accordance with the delivery plan.

You must ensure you dedicates sufficient resources and co-operate with us in order to bring about the successful delivery of those Technical Services.

For the avoidance of doubt, any Intellectual Property contained within any deliverables produced, as part of any Technical Services we provide to you, remains with us. To the extent that you may obtain any Intellectual Property rights in those deliverables, you immediately assign those Intellectual Property rights to us, on creation.

6.

Payment
We will provide you with a monthly tax invoice for the Subscription Fee, which will be automatically deducted from your account each month. Where a direct debit facility is not in place, our invoices are due within 14 days of the invoice date.

The Subscription Fee is set out on the Quote and is established based on an estimate of the number of borehole logs which will be entered into Tablogs. If you exceed your Borehole Log Quota we reserve the right to increase the Subscription Fee in our sole discretion, by written notice to you and taking into consideration any indicative price increase we may have set out on a Quote.

Technical Service Fees are payable in accordance with the payment terms set out on the Quote and if not specified, within 14 days of the invoice date.

Unless expressed otherwise, all Fees are quoted in Australian Dollars and are exclusive of GST, withholding taxes, duties and charges imposed or levied in Australia, or overseas, in connection with this Agreement.

You are responsible for all bank fees and charges applied by your bank, credit provider or payment gateway provider, which you choose to use.

7.

Requirements for use of Tablogs

7.1

Access
You acknowledge and agree the full functionality of Tablogs will only be accessible using the internet and by users with a valid Account.

In order to make full use of the mobile application version of Tablogs you must allow your device access to data connectivity, location services and storage.

7.2

Support
Support for Tablogs is provided in accordance with the support arrangements as set out on our Website and may vary from time to time.

7.3

Tablogs outages and system maintenance
If it is necessary to interrupt your use of Tablogs, we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, Tablogs will be unavailable. You acknowledge access to Tablogs may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance there may be updates to Tablogs which may change the interface and manner in which it functions.

You agree that we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such interruptions will not constitute a breach by us of these terms.

8.

Your use of Tablogs

8.1

Registering an Account
In order to use Tablogs, you are required to provide us with Personal Information and create an Account with us. You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.

8.2

Account security
Maintaining the security of your Account is important to ensuring your Personal Information, and that data which we process on your behalf, remains safe. We work hard to keep Tablogs secure and we ask you to contribute.

You are responsible for the activities undertaken using your Account which occur via Tablogs, whether such activities are authorised by you or not.

8.3

Lawful use of Tablogs
You undertake not to upload, store or access any data on Tablogs if such access or storage would infringe a person’s Intellectual Property rights, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).

8.4

Conduct which is expressly prohibited
You may only acquire and make use of Tablogs for the sole purpose of meeting your internal business needs. You must not use or include any part of Tablogs in any service bureau or fee generating service offered to third parties.

Furthermore, you must not:

(a) knowingly transmit any viruses or other disabling features to or via Tablogs;

(b) intentionally disable or circumvent any protection or disabling mechanism of Tablogs;

(c) use Tablogs in any way which could be reasonably expected to interfere with or damage our

systems, any other operator's systems, or another user's enjoyment of Tablogs; or

(d) attempt, facilitate or assist another person to do any of the above acts.

9.

App Marketplace Providers
The Tablogs mobile applications are available from Google Play and the Apple App Store (App Marketplace Providers).

This Agreement is between us and you only. We, and not the App Marketplace Provider, are responsible for Tablogs, and we are solely responsible for:

(a) its support and maintenance;

(b) the investigation, defence, settlement and discharge of any claim which relates to an infringement of third-party Intellectual Property rights arising from the use of Tablogs; and

(c) any claim Tablogs fails to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.

The App Marketplace Provider’s liability to you is limited to the refund of the purchase price of Tablogs and any other remedies under consumer protection law. Your right to use the mobile version of Tablogs is non-transferable and non-sublicensable, except to the extent the App Marketplace Provider permits family sharing or like sharing arrangements.

The App Marketplace Provider may monitor your use of Tablogs and is entitled to enforce the terms of this Agreement against you. You agree to submit to their legitimate enforcement activities. If there is any inconsistency between this Agreement and the application use rules set out in the App Marketplace Provider’s terms of service, their terms of service will prevail to the extent of the inconsistency.

You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and you are not listed on any U.S. Government list of prohibited or restricted parties.

10.

Privacy
You agree and consent to us handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website.

11.

Confidentiality

11.1

Confidentiality
A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

Notwithstanding any other provision of this clause 11, a party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers and accountants.

Each party will take all reasonable steps to ensure that its employees, agents, and any subcontractors engaged for the purposes of the Agreement do not make public or disclose the other party's Confidential Information.

A party will not be in breach of this clause 11 in circumstances where it is legally compelled to disclose the other party's Confidential Information.

11.2

Permitted Disclosures
We may disclose information, including, but not limited to, your Personal Information or a transmission made using Tablogs, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request, to protect our legal rights, prevent harm to persons or where such disclosure is necessary to the proper operation of Tablogs (Permitted Disclosures).

12.

Intellectual Property
We warrant we own or have a licence to use the Intellectual Property in Tablogs.

If you provide us with content, including, without limitation, Geotechnical Data, text, images, audio, video, code and any other materials (User Data). Your User Data stays yours. This Agreement does not transfer ownership of User Data to us.

When you provide User Data, you grant us a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Data works better with Tablogs), communicate, publish, publicly display, publicly perform and distribute User Data for the purposes of allowing us to provide, improve, promote and protect Tablogs.

You grant us a perpetual, assignable and worldwide licence to use your name and any of your registered or unregistered trade marks in a marketing and advertising context to identify you as a client, or user, of Tablogs.

You represent that you own all rights to your User Data or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Data to the extent that it is used within Tablogs.

You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:

(a) create an adaptation or translation of, all or part of Tablogs in any way;

(b) use Tablogs in a manner which may infringe any other persons Intellectual Property;

(c) incorporate all or part of Tablogs in any other webpage, site, application or other digital or non-digital format; or

(d) except to the extent that reproduction occurs automatically through its ordinary use, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Tablogs.

Notwithstanding anything else in this Agreement, you grant us a non-exclusive, irrevocable, worldwide, royalty free and sublicensable license to use, distribute and commercialise Geotechnical Data which you enter into the system.

13.

Warranties
We aim to provide the best possible user experience, however, subject to the Non-excludable Conditions, we make no warranties or guarantees that Tablogs is fault free, regarding Tablogs’s fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, Tablogs including its correctness, accuracy, timeliness, completeness, reliability or otherwise.

14.

Limitation of Liability

14.1

Commercial nature of this Agreement
You acknowledge and agree you are entering into and acquiring the goods and services under this Agreement for commercial purposes and not for domestic, personal or household use.

14.2

Implied Conditions
We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.

14.3

Exclusion of liability
Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:

(a) Tablogs being inaccessible to the Client for any reason;

(b) incorrect or corrupt data, lost data, or any inputs or outputs of Tablogs;

(c) computer virus, trojan and other malware in connection with Tablogs;

(d) security vulnerabilities in Tablogs or any unauthorised access to or corruption of User Data;

(e) failure of any third party component including, without limitation, hardware failure, network failure, or power failure;

(f) an Event of Force Majeure; or

(g) the Client’s participation in any experiments, beta tests or pilots.

14.4

Limits to liability associated with goods and services
To the fullest extent possible under the law, we limit our liability for any breach to:

(a) in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods, or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and

(b) in the case of services: the resupply of the services or the payment of the cost of having the services resupplied.

14.5

Indemnity
You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of Tablogs, including any costs arising from your breach of this Agreement, your infringement of any third party Intellectual Property rights associated with this Agreement, any harm to, claim or action by a third party (including to that third party’s person or personal property) which arise directly or indirectly from your use of Tablogs and your breach of any law.

15.

Dispute Resolution
A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 15 before commencing any legal proceedings.

If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.

Each party must pay its own internal and legal costs in relation to complying with this clause 15. The mediator’s costs are to be shared equally.

The parties acknowledge and agree this clause 15 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

16.

Termination

16.1

Termination for convenience
Either party may terminate this Agreement by providing the other party notice in writing. If you provide notice of termination, termination will take effect, at the end of the then current Subscription Period.

If we provide you notice of termination, termination will take effect, at the end of the then current Subscription Period, if the notice is provided at least 14 days prior to the Renewal Date. If the notice is provided within 14 days of the Renewal Date, termination will take effect at the end of the following Subscription Period.

16.2

Termination for cause
Either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.

16.3

Actions upon termination
Upon termination you must immediately stop using Tablogs, we reserve the right to permanently erase any User Data associated with your Account and you will no longer have access to your Account or Tablogs.

17.

General
Assignment - We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent.

Entire Agreement - This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

Governing law - The laws of Queensland and the Commonwealth of Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

WebsiteNotices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:

(a) which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and

(b) which you send, must be either delivered or posted by prepaid post to the address set out at clause 1 or sent by email to our email address set out at clause 2.3.

Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.

Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.

Variations to this Agreement - We may vary this agreement by giving one month written notice to you. If you do not accept the terms of the variation you may terminate your subscription in accordance with clause 16.1.

18.

Definitions and interpretation

18.1

Definitions
Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:

AssignmentAccount or AssignmentTablogs Account means the username and access credentials used when you access Tablogs.

AssignmentAgreement means these terms and conditions and any document incorporated into them by reference.

Borehole Log Quota means the number of logs available to be recorded in Tablogs as set out on any Quote we provide to you.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, the system operations associated with Tablogs and security credentials. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this Agreement.

Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

Fees mean both Technical Service Fees and Subscription Fees.

Geotechnical Data means all data relating to the location, make up and features of a borehole log.

Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Modules means any addon components to Tablogs which we make available from time to time.

Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Payment Terms mean the requirement to make payment immediately on commencement of this Agreement and each subsequent Renewal Date in accordance with the Borehole Log Quota selected.

Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.

Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.

Privacy Policy means the privacy policy available on our Website as amended by us from time to time.

Quote meansQuote means any written quote or proposal setting out the Subscription Fees, Subscription Period, Borehole Log Quota, Technical Services, Technical Service Fees and any Special Conditions which apply to this Agreement.

Renewal Date means a date one calendar month after the beginning of the then current Subscription Period.

Subscription Fee means the monthly price for the Tablogs Borehole Log Quota as set out on our Website.

Subscription Period means the period of time specified on the Quote, being monthly or annually.

Technical Services means the services carried out by us associated with Tablogs, as set out in a Quote, including the development of export customisations, customised reports or additional features for Tablogs.

Technical Service Fees means the fees associated the Technical Services, as set out in the Quote.

You or your means the person or entity using Tablogs.

Us, we or our means Tablogs Pty Ltd ACN 627 957 608.

Website means the website located at www.tablogs.com.au and www.tablogs.com and any of its subdomains.