Street Smarts – Terms of Service

Street Smarts – Data Subscriptions (Pipeline & Rental)

These Terms and Conditions apply solely to subscriptions to Franklin St.’s Street Smarts Pipeline & Rental Tracker product and do not apply to Franklin St.’s advisory, agency, or other professional services, which are governed by separate terms.

Market Pipeline & Rental Tracker – Terms and Conditions
These “Terms and Conditions” between Franklin St BTR Pty Ltd (ABN 22 664 045 112) (“Franklin St”) and the customer purchasing an online subscription (“Customer”) govern the provision of the Services provided by Franklin St. These Terms and Conditions form the “Agreement” between the Customer and Franklin St.

1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Business Day: a day other than a Saturday, Sunday or registered public holiday in Victoria, Australia.
Confidential Information: any information that is proprietary or confidential by its nature or is clearly labelled as such. Confidential Information includes details of the Services, and any reports provided as part of the Service.
Customer Platform Requirements: means the requirements for each individual Customer to have valid Microsoft Power BI licence which entitle Customer to access the Market Data.
Data Privacy Laws: all applicable privacy and data protection laws and regulations relating to or impacting on the handling, processing and/or privacy of personal information, including but not limited to the Privacy Act 1988 (Cth), including the Australian Privacy Principles, the Spam Act 2003 (Cth), and the Do Not Call Register Act 2006 (Cth) in each case as such laws may be amended, repealed or superseded from time to time.
Effective Date: shall mean the date of payment for the Services.
Fees: the fees payable by the Customer to Franklin St, as set out on the Franklin St website.
Franklin St Data: the data generated by the Services.
Market Data: all data provided by Franklin St utilising the Platform.
Platform: means the Microsoft Power BI platform or any replacement platform utilised by Franklin St from time to time.
Services: the provision of the reports and other Market Data provided via any platform utilised by Franklin St.
Term: the period during which Franklin St will provide Services to the Customer, as set out in these Terms and Conditions and the Franklin St website.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

2. SERVICES
2.1 Subject to the Customer paying the Fees, the restrictions set out in clause 3 and the other terms and conditions of this Agreement, Franklin St agrees to provide the Services to the Customer.

3. USAGE RIGHTS AND LIMITATIONS
3.1 The Customer shall not:
3.1.1 except as may be allowed by any applicable law:
3.1.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means unless all such use appropriately references Franklin St as the source of the Franklin St Data; or
3.1.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer any part of the Services;
3.1.2 access all or any part of the Services in order to build a product or service which competes with the Services;
3.1.3 save with Franklin St’s prior written consent (which Franklin St may withhold at its absolute discretion), use the Services to provide services to third parties;
3.1.4 attempt to obtain, or assist any third party or person in obtaining, access to and use of the Services, other than as provided under this Agreement; or
3.1.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party.
3.2 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Franklin St.

4. DATA AND PROPRIETARY RIGHTS
4.1 Franklin St owns all right, title and interest in and to the Market Data. Subject to the Customer meeting the Customer Platform Requirements, Franklin St will provide access to the Customer’s named users to the Franklin St Data. Each named user must have a separate user name and password. The user name and password cannot be shared with any other user.
4.2 Except as otherwise set out in this clause, Franklin St grants the Customer a licence to access Market Data for the Term solely for the Customer’s internal business purposes. The Customer’s right to use the data does not include the right to sub-licence it, nor to sell or otherwise exploit it, nor to combine it with other data sources. Nothing in this clause prevents the Customer from utilising the Market Data for the Customer’s own research purposes provided that any publication of the data attributes Franklin St as the source of that Market Data.
4.3 The Customer agrees that Franklin St and/or its licensors own all intellectual property rights in the Services, all materials, content, and branding on Franklin St’s website and service platform. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
4.4 Franklin St confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

5. THIRD PARTY PROVIDERS
5.1 The Customer agrees that the Services may access or interact with third party systems and/or content and that the Customer’s access will be solely at its own risk. Franklin St makes no representation, warranty or commitment and, subject to the remainder of this Agreement, shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party system or website, or any transactions completed, and any contract entered into by the Customer, with any such third party.

6. FRANKLIN ST’S OBLIGATIONS
6.1 The Services will be provided substantially in accordance with the Agreement, except to the extent of any non-conformance which is caused by use of the Services contrary to Franklin St’s instructions, or modification or alteration of the Services by any party other than Franklin St (or persons duly authorised by Franklin St).
6.2 If the Services do not conform with the foregoing undertaking, Franklin St will, at its expense, use reasonable endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 Notwithstanding the foregoing, Franklin St:
6.3.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
6.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer agrees that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7. CUSTOMER’S OBLIGATIONS
The Customer shall:
7.1 ensure that it has sufficient licences to meet the Customer Platform Requirements as notified by Franklin St from time to time;
7.2 provide Franklin St with all necessary co-operation in relation to this Agreement, and all necessary access to such information as may be required in order to provide the Services, including but not limited to security access information and configuration services;
7.3 comply with all applicable laws and regulations with respect to its activities under this Agreement, including Data Privacy Laws;
7.4 obtain and shall maintain all necessary licences, consents, and permissions for Franklin St to perform its obligations under this Agreement, and any other required by Data Privacy Laws;
7.5 be solely responsible for procuring and maintaining its network connections, notably the internet connection, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet.

8. FEES
8.1 In order to access the Service, the Customer shall pay the Fees to Franklin St in accordance with this clause 8 and the Franklin St website.
8.2 All amounts and fees stated or referred to in this Agreement:
8.2.1 shall be payable in Australian Dollars;
8.2.2 are non-cancellable and non-refundable;
8.2.3 are exclusive of GST, which shall be added to Franklin St’s invoice(s) at the appropriate rate.
8.3 Franklin St shall be entitled to increase the Fees for the Services and access to Market Data from time to time, but will not do so during the current term of a subscription purchased by you.

9. CONFIDENTIALITY
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to clause 9.3, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
9.3 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9.6 This Clause 9 shall survive termination of this Agreement, however arising.

10. INDEMNITY
10.1 Franklin St shall defend the Customer, its officers, directors and employees against any claim that the Services infringe any copyright or trademark in Australia effective as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
10.1.1 Franklin St is given prompt notice of any such claim;
10.1.2 the Customer provides all reasonable co-operation to Franklin St in the defence and settlement of such claim; and
10.1.3 Franklin St is given sole authority to defend or settle the claim.
10.2 In the defence or settlement of any claim, Franklin St may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement immediately on notice to the Customer and refund the Customer any Fees for the unexpired Term as at the date of termination without any additional liability or costs to the Customer.
10.3 In no event shall Franklin St, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.3.1 a modification of the Services by anyone other than Franklin St;
10.3.2 the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by Franklin St; or
10.3.3 the Customer’s use of the Services after notice of the alleged or actual infringement from Franklin St or any appropriate authority.
10.4 The remedies under this clause 10, constitute the Customer’s sole and exclusive rights and remedies, and Franklin St’s (including Franklin St’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any copyright or trade mark.
10.5 The Customer shall defend, indemnify and hold harmless Franklin St against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services.

11. LIABILITY
11.1 Nothing in this Agreement excludes the liability of Franklin St:
11.1.1 for death or personal injury caused by Franklin St’s negligence; or
11.1.2 for fraud or fraudulent misrepresentation.
11.2 Except as expressly and specifically provided in this Agreement:
11.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Franklin St shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Franklin St by the Customer in connection with the Services, or any actions taken by Franklin St at the Customer’s direction;
11.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
11.2.3 the Services are provided to the Customer on an “as is” basis.
11.3 Subject to clause 11.1 and clause 11.2:
11.3.1 Franklin St shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
11.3.2 Franklin St’s total aggregate liability in contract (including in respect of the indemnity at clause 11.1), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in out of or in connection with this Agreement shall be limited to a sum equal to the Fees paid by the Customer.

12. TERM AND TERMINATION
12.1 The Agreement shall, unless otherwise terminated as provided in this Clause 12, commence on the Effective Date and shall continue for the Term. The subscription will automatically renew for successive 12 month periods unless the Customer provides Franklin St with a notice at least 30 days prior to the end of the then current Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party:
12.2.1 fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
12.2.2 commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
12.2.3 repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
12.2.4 has a liquidator being appointed in respect of it or ceases, or indicates that it is about to cease, carrying on business.
12.3 On termination of this Agreement for any reason:
12.3.1 all licences granted under this Agreement shall immediately terminate and the Customer will immediately cease all use of the Services;
12.3.2 the Customer shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to Franklin St; and
12.3.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. SUSPENSION
13.1 Without prejudice to any other right or remedy that Franklin St may have, Franklin St may suspend the Services at any time immediately by giving notice to the Customer:
13.1.1 for any actual or alleged breach of this Agreement;
13.1.2 if Franklin St has not received payment of any Fees within 30 days of the due date; or
13.1.3 if Franklin St considers that suspension is reasonably required to protect the security, confidentiality or integrity of the services provided by Franklin St to any of its customers or the data of Franklin St or any of its customers.

14. FORCE MAJEURE
Franklin St shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Franklin St or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15. MISCELLANEOUS
15.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.2 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15.3 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this Clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.4 This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
15.5 The Customer shall not, without the prior written consent of Franklin St, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Franklin St may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
15.6 This Agreement may be executed in any number of counterparts, and by the parties as separate counterparts, but will not be effective until each party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same Agreement.

16. NOTICES
16.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by email or sent by pre-paid first-class post or recorded delivery post to the other party at its email or postal address.
16.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

17. LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Victoria, Australia and Each party irrevocably agrees that the courts of Victoria, Australia, shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).