Terms & Conditions

1. TERMS AND CONDITIONS AND PARTIES

  • 1.1 Access to or use of the Website (defined below) or use of any facilities or any part of the Pentagon Service (defined below) made available through the Website or otherwise, is subject to the terms and conditions that appear below (all of which are called the “Agreement”).
  • 1.2 The Website and any of the facilities and any part of the Pentagon Service are intended for use by a business or commercial customer only. You, for yourself (being a User), and also you (for and on behalf of any organisation you represent) jointly and severally warrant and represent that you are not a consumer or using any of the Website or any of the facilities or any part of the Pentagon Service for a non-commercial purpose.
  • 1.3 If you are:
    • 1.3.1 not subject to a Subscription, then this Agreement alone applies. In such case, this Agreement is between you personally (and also you for and on behalf of any organisation you represent, jointly and severally) on the one hand and Pentagon Limited on the other hand; or
    • 1.3.2 subject to a Subscription, then a Contract (defined below) applies. In such case, that Contract is between the Client (being any organisation you represent who is identified as the “Client” in a Subscription Order) on the one hand and Pentagon Limited on the other hand.
  • 1.4 Innovotech Labs. Pty. Ltd. (ACN 162 980 707) is registered in Australia with its registered office at 603/108 Bay St. Port Melbourne VIC 3207 (and is called “Pentagon” in this Agreement).

2. DEFINITIONS

  • 2.1 In this Agreement, unless the context otherwise requires:
    • 2.1.1 “Agreement” means the terms and conditions of this document which is entitled “Pentagon Ltd terms and conditions for the Pentagon Service”.
    • 2.1.2 “Authorised User” means a User who is specified in a Subscription Order as being entitled to use a particular Subscription via the Website.
    • 2.1.3 “Client” means:
      • 2.1.3.1 if you are not subject to a Subscription, the User using the Website or Pentagon Service and (jointly and severally) any organisation you represent; and
      • 2.1.3.2 if you or the organisation you represent are subject to a Subscription, the party identified as the “Client” in a Subscription Order.
    • 2.1.4 “Contract” means a contract between Client and Pentagon in respect of a Package within the Pentagon Service, comprised of: (i) this Agreement; and (ii) a Subscription Order.
    • 2.1.5 “Data” means business intelligence and data relating to the Retailers and the goods and services they offer or do not offer (and to business intelligence and data relating to certain activities recorded through www.getpentagon.com.au).
    • 2.1.6 “Fees” means the fees payable in respect of any Package or Contract.
    • 2.1.7 “Free Functionality” means:
      • 2.1.7.1 any Website functionality or Pentagon Service functionality which is available to a Client free of charge; or
      • 2.1.7.2 any Package which is available to a Client free of charge.
    • 2.1.8 “Pentagon Service” means any service provided by Pentagon whereby Pentagon procures the provision of Data to Client, which service includes:
      • 2.1.8.1 any or all of the service provided by Pentagon via the Website (or via other electronic communication from Pentagon with respect to Data) including Client using such different tools made available by Pentagon, to manipulate, filter and display such Data in different ways; and
      • 2.1.8.2 any report provided by Pentagon in respect of Data in any form whatsoever; provided that the degree and extent to which Data is available and the degree and extent to which Client is entitled to view, filter and manipulate that Data is dependent on which Package is applicable to Client.
    • 2.1.9 “Offline Retailer” means a Retailer which does not offer the sale of its products to the general public via an online dedicated website for this purpose.
    • 2.1.10 “Online Retailer” means a Retailer which offers the sale of its products to the general public, inter alia, via an online dedicated website for this purpose.
    • 2.1.11 “Package” means a level of service provided to Client for the Pentagon Service which, dependent on the price paid for any particular such level, makes available to Client different Package Attributes; and, for the avoidance of doubt, “Package” includes Free Functionality and Subscriptions.
    • 2.1.12 “Package Attributes” means the different variables in respect of a Package, which variables may include: duration of service (i.e. the term, the start date and the end date); the number and/or identity of Authorised Users; the number and details of product categories/brands made available; the degree of filtering and data analysis tools available; the degree of reports available; the extent of availability of data on competitor brands; the extent of availability of degree of export features; the number of Retailers available through such service; the Fees; and any overriding payment terms; the degree of availability of historic data; any other additional functionality and features; details of any custom reports in respect of Data; and any special terms that may override terms of this Agreement). In respect of Subscriptions, many Package Attributes will be set out in a Subscription Order.
    • 2.1.13 “Software” means any proprietary software utilised by Pentagon to enable use of the Pentagon Service.
    • 2.1.14 “Subscription” means a Package which is not Free Functionality.
    • 2.1.15 “Subscription Order” means Pentagon’ standard subscription order document in respect of a Subscription, which document has been executed by Pentagon and by Client and which contains many details of the Package Attributes in respect of the relevant Subscription.
    • 2.1.16 ” Retailer” means any Retailer (or other provider of goods and/or services selected by Pentagon from time to time) whose products and services, from time to time, may be listed as part of the Data.
    • 2.1.17 “User” means a single individual human being (who may, depending on Package, be specified by name).
    • 2.1.18 “Website” means the website through which the Pentagon Service is offered, currently www.getpentagon.com.au.
  • 2.2 Pentagon reserves the right to amend this Agreement (amend a Contract) from time to time, provided that in respect of a Client subject to a Subscription (and only in that instance), subject to Clauses 4.3 and 4.9:
  • 2.3 All amendments to this Agreement will be posted on-line. Subject to Clause 2.2, continued use of the Pentagon Service or the Website or accessing Data will be deemed to constitute acceptance of amendments to this Agreement.

3. PROVISION (AND LIMITATIONS) OF THE Pentagon SERVICE

  • 3.1 Use of the Pentagon Service and the Website and access to Data are each subject to the terms and conditions set out in this Agreement (and any Contract).
  • 3.2 To use the Website and/or the Pentagon Service and/or to access Data, Client must not be a consumer and Client warrants and represents that, for the purposes of this Agreement (and any Contract), it is not a consumer.
  • 3.3 The Pentagon Service is available only through a Package (whether that Package is a Free Functionality or a Subscription).
  • 3.4 Pentagon uses proprietary algorithms and datasets which match different goods and services together and against each other, as well as grouping them in different ways. Pentagon has, of necessity, made assumptions as part of those algorithms and datasets; and Client may agree or disagree with such assumptions. Nevertheless, Client represents and warrants that it uses the Pentagon Service, the Website and the Data on the basis that:
    • 3.4.1 it has no objections to the assumptions made with respect to such algorithms (which may include assumptions as to matching rules, averaging rules and availability rules) and it has no objection to the limitations of any algorithms, assumptions or datasets; and
    • 3.4.2 it has reviewed and accepts the FAQ document on the Website. (Certain details of algorithms, assumptions or datasets may be available through the FAQ document on the Website and Client is assumed to have reviewed that FAQ document.
  • 3.5 The Pentagon Service and use of the Website does not include the provision of a computer or other necessary equipment or software to access the Website. To use the Website, Client will require Internet connectivity and appropriate telecommunication links and software. Pentagon shall not be liable for any telephone or other costs that Client may incur.

4. PACKAGES AND PAYMENT

  • 4.1 Free Functionality: The Package Attributes for Free Functionality are set out on the Website and/or otherwise made available by Pentagon. As the name implies, Free Functionality is free of charge. Client may elect to use Free Functionality by just using that Free Functionality. However, Free Functionality may require registration by a Client (and/or may require use of a username and/or a password supplied by Pentagon) before use of that Free Functionality is allowed. (Please see further Clause 8.) A legal contract comprised of this Agreement in respect of any Free Functionality is formed when the Client starts using or accessing that Free Functionality.
  • 4.2 ‘Subscription Packages’: The prices and Package Attributes for Subscriptions are available on request from Pentagon. Client may contact Pentagon by phone or email for details on info@getgetpentagon.com.au.au or on + (61) 3 8123 3101. Client may also be contacted by Pentagon by phone or email to discuss such details, if Client has registered on the Website (as to which please see Clause 8). Once a Subscription is applicable to a Client, any functionality that would normally be provided as part of Free Functionality, is deemed also to form part of, and is deemed also to be provided pursuant to, that Subscription. In respect of a Subscription, Client must enter into a Contract for that Subscription before use of that Subscription will be permitted. A contract is formed when Pentagon and Client have each executed a Subscription Order in respect of the relevant Subscription.
  • 4.3 Changes to Package Attributes: Package Attributes may be changed at any time by Pentagon. However, in respect of Subscriptions which have already been purchased and paid for (and which are therefore subject to a Subscription Order), Package Attributes will only be altered via a new Subscription Order, provided always that Pentagon can always (without a new Subscription Order) add new features to a Subscription (by way of trial or otherwise) by way of expanded Package Attributes (or otherwise) at no extra cost to Client, for whatever period Pentagon see fit.
  • 4.4 Renewing or upgrading a Subscription: The term of a Contract for a Subscription shall be 12 months unless specified otherwise in the relevant Subscription Order (but whatever that term is, Pentagon call it the “Subscription Fixed Term”). In respect of any Clients who wish to renew a Subscription mid-term, such renewal shall take effect at the end of the Subscription Fixed Term. A Subscription Order may contain provision for automatic renewal of the a Contract at the end of its term. However, in respect of any upgrading (or other alteration) of a Subscription, unless specified otherwise in the any subsequent Subscription Order, such upgrade (or other alteration) shall take place within the Subscription Fixed Term (which Subscription Fixed Term shall remain unchanged, unless with the prior written agreement of both the Client and Pentagon through a new Subscription Order).
  • 4.6 Payment: Payment shall be by such method as Pentagon indicates it is prepared to accept and in the currency noted on the invoice. Fees shall always be paid and payable without set-off, reduction or withholding on any account whatsoever.
  • 4.7 Variation of Fees: Pentagon may vary the Fees from time to time provided that it does not vary such Fees in respect of any Subscription during the term of the Contract applicable to that Subscription (but may do so in respect of that Subscription in respect of any renewal of that Subscription).
  • 4.8 Late Payment: If Client is overdue with any payment due (including Fees) then, without prejudice to any other right or remedy available to Pentagon, Pentagon may:
    • 4.8.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
    • 4.8.2 Pentagon reserves the right to suspend the provision of the Pentagon Service to Client until Client has rectified matters; and/or
    • 4.8.3 terminate the affected Contract (or this Agreement) forthwith by notice in writing to Client.
  • 4.9 Cost increase: If the cost to Pentagon in providing the Pentagon Service under any Contract increases as a result of any breach of the Agreement (or any Contract) by Client, or the supply of incorrect or inadequate information by Client, or any change to the law or any other reason beyond Pentagon’ reasonable control, such increase shall be added to the Fees payable in respect of, and under, the relevant Contract. Pentagon shall notify Client as soon as reasonably practicable in advance of any such increase.

5. WARRANTIES AND SERVICE LEVELS

  • 5.1 Main warranty: Pentagon warrants that it shall use reasonable care and skill in the provision of the Pentagon Service, the Website and the provision of the Data (whether in respect of a Contract or not).
  • 5.2 Non-responsibility for data source: When Pentagon compares goods and services or displays business intelligence on any other matters including Data, although Pentagon uses its reasonable endeavours to make such comparisons honestly and fairly, Pentagon is dependent on raw data underlying the Data, which underlying raw data is sourced from outside Pentagon. Subject to Clause 5.1, Pentagon does not warrant and Pentagon expressly excludes all liability in respect of the accuracy, completeness, fitness for purpose or legality of any Data or other information accessed using the Pentagon Service or accessed via the Website or otherwise communicated to Client (by email, by hard copy printout from the Website or otherwise). Client agrees that sole responsibility for the accuracy, completeness, fitness for purpose or legality of information relating to a Retailer, Data or information as to goods or services or other data from a Retailer shall rest with the relevant Retailer (or manufacturer, if that information is sourced from a manufacturer, such as that on ‘back of pack’) or other person from whom such information or data is sourced; save to the extent that Pentagon may not have complied with Clause 5.1.
  • 5.3 Free Functionality: Subject to Clause 5.1, in respect of use of the Pentagon Service and/or the Website and/or the Data which is subject to a Free Functionality, Client expressly agrees that use of the Pentagon Service and the Website and Data is at Client’s sole risk and that the Pentagon Service and the Website and the Data are provided on an “as is” and “as available” and “with all faults” basis and without warranties or representations of any kind either express or implied.
  • 5.4 Subscriptions: Subject to Clause 5.1, in respect of use of the Pentagon Service and/or the Website and/or the Data which is in respect of a Subscription, Client expressly agrees that use of the Pentagon Service and the Website and Data is at Client’s risk. However, Pentagon shall use reasonable endeavours to ensure that the Data is updated regularly as further detailed below in Clauses 5.4.1 and 5.4.2
    • 5.4.1 Service Levels in general: Client acknowledges that the Data is not updated continually and ceaselessly. It is Client’s responsibility to verify actual prices and other details from independent sources.
    • 5.4.2 Service Levels in detail: The following service level is offered:
      • 5.4.2.1 In respect of: (a) Online Retailers, price and price promotions which appear within the Data are updated daily except in the case of: (i) technical glitches at a relevant Retailer?s online store; and/or (ii) maintenance down-time at a relevant Retailer?s online store.
      • 5.4.2.2 Technical errors affecting the Website and the availability of the Pentagon Service and Data may happen but, in respect of Subscriptions only, will not usually occur on more than 5 occasions in a year (each such occasion lasting for maximum 24 hours).
      • 5.4.2.4 The price of a good or service within a particular Retailer will continue to be displayed as part of the Data for several days, even if Pentagon notices a temporary shortage of that good or service. However, if such good or service is not restocked by a Retailer after several more days (as to which, the precise time period varies according to tweaking of the Pentagon’ relevant proprietary algorithms) then such good or service will be removed from current Data (but may continue to appear in historical Data); although Pentagon only warrants this service level for Subscriptions.
      • 5.4.2.5 The Data will display (and support) the vast majority of the common offer types, ‘special promotion’ types and ‘bundling types’ used by the Retailers. However, there may be non-standard offers or non-standard promotions or complex bundling deals, which are, or will be, offered by the Retailers that may not appear in the Data (or may appear inaccurately in the Data). The Pentagon Service is used on this basis. Pentagon continues to develop new algorithms on an ongoing basis to bring more offer types, ‘special promotion’ types and ‘bundling types’ into the ambit of the Pentagon Service so as to continually attempt to improve the accuracy of the Data.
      • 5.4.2.6 New goods or services offered by the Retailers or new goods or services from particular manufacturers and suppliers may take several days to be appear and/or to be updated within any current Data.
  • 5.5 Pentagon will use reasonable endeavours to correct any errors or omissions as soon as practicable after being notified of them in writing. However, subject to Clause 5.1:
    • 5.5.1 Pentagon does not guarantee that the Pentagon Service or the Website will be free of faults; and
    • 5.5.2 Pentagon does not accept liability for any errors or omissions. In the event of a fault in the Pentagon Service, Client should report it by email to clients@Getpentagon.com.au.
  • 5.6 Subject to Clause 5.1, Pentagon does not warrant that use of the Pentagon Service or the Website or the use of, or access to, Data will be uninterrupted and Pentagon does not warrant that any information (or messages) transmitted via the Pentagon Service or the Website will be transmitted accurately, reliably, in a timely manner or at all.
  • 5.7 Pentagon warrants that Pentagon has taken reasonable steps (using industry-standard virus-checking software) with respect to the Pentagon Service and the Website to check for viruses and anything else which may have a harmful effect on any technology; but subject to that, Pentagon does not warrant that the Pentagon Service or the Website is free from viruses or anything else which may have a harmful effect on any technology.
  • 5.8 Subject to Clause 5.1, Pentagon does not warrant and Pentagon excludes all Liability (as defined in Clause 10.9.2) in respect of the accuracy, completeness, fitness for purpose or legality of any information or Data accessed using the Pentagon Service or Website; and Pentagon exclude all Liability (as defined in Clause 10.9.2) of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature.
  • 5.9 Pentagon assumes no responsibility for the content or services of any other websites or services to or from which the Website or the Pentagon Service has links.
  • 5.10 Subject to Clause 5.1, Client acknowledges that Pentagon shall not have any responsibility for any business decisions taken by Client as a result of the Pentagon Services (or the Data) or any use of the Pentagon Services (or the Data) by Client or any other person.

6. CHANGES TO, AND MAINTENANCE OF, THE Pentagon SERVICE AND WEBSITE

  • 6.1 Although, subject to Clause 5, Pentagon will try to allow uninterrupted access to the Pentagon Service and the Website, access to the Pentagon Service and the Website and Data may be suspended, restricted or terminated at any time. This is true generally save that in respect of a Subscription, this will only be the case for maintenance reasons or for reasons set out elsewhere in this Agreement (or any Contract).
  • 6.2 Pentagon reserves the right to change, modify, substitute, suspend or remove without notice any information or Data or service on the Website or forming part of the Pentagon Service from time to time. Client’s access to the Website and/or the Pentagon Service and/or Data may also be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. In the case of Subscriptions, Pentagon will attempt to restore such access as soon as Pentagon reasonably can.
  • 6.3 Subject to Clause 4.3, Pentagon may at any time withdraw any Retailer (or any goods or services of a Retailer) or data source from (or add a new Retailer or other data source to) the Pentagon Service.

7. RULES FOR USE OF THE Pentagon SERVICE, THE WEBSITE AND DATA

  • 7.1 Limited Use of Data and Pentagon Service: Subject to timely and proper payment to Pentagon of all Fees due and payable, Pentagon hereby grants to Client a non-exclusive, non-transferable, non-sublicensable revocable licence to use Data and the Pentagon Service for Client’s legitimate internal business purposes in the Australia only provided the same is in compliance with Clause 7.2.
  • 7.2 Confidentiality: Data shall be confidential to the Client and Client may not make the same available to any other person without the prior written consent of Pentagon. Furthermore, any publication of, or reference to, Data outside of the Client is expressly prohibited without the prior written consent of Pentagon, whom Client hereby acknowledges would need to grant a separate licence in respect of the same (and which will, in any event, always be subject to the condition that “Source: Pentagon” shall be appended to such publication or reference). Furthermore, Client shall keep and procure to be kept secret and confidential the Data and shall not use nor disclose the same save:
    • 7.2.1 for the purposes of the proper performance of this Agreement (or any Contract); or
    • 7.2.2 as otherwise permitted by this Agreement (or any Contract); or
    • 7.2.3 with the prior written consent of Pentagon;
    • provided that Client may disclose (but not permit access to it via the Pentagon Service or Website unless such persons are Authorised Users) the Data to its employees, agents, clients, consultants and contractors who reasonably need to receive the Data for the purposes of exercising Client’s rights or performing Client’s obligations under this Agreement (or any Contract). Where Client discloses Data to its employee, agent, client, consultant or contractor, it shall do so subject to obligations equivalent to those set out in this Clause 7.2 and shall use its best endeavours to ensure that any employee, agent, client, consultant or contractor complies with such obligations.
  • 7.3 Pentagon (or its licensors) grants to Client a non-exclusive, revocable, non-transferable licence to use the Software through the Website for the purpose of using the Pentagon Service. Using the Pentagon Service and Software allows Client to obtain information held on the Website or from the websites of third party providers to Pentagon. When Client uses the Pentagon Service, Client may cause the Software to send a request to the third party providers for information regarding goods and/or services. Client acknowledges and agree that when Client accesses and collects information from the third party sites using Pentagon Software, Client does so on Client’s own behalf and that Client has not appointed Pentagon to act as Client’s agent. Pentagon simply makes the Pentagon Service and Software available to Client by which Client may access such third party sites.
  • General behavioural rules
  • 7.4 Without limitation to other general prohibitions in this Agreement, the following uses of the Pentagon Service, the Website and Data are expressly prohibited and Client undertakes not to do (or to permit anyone else to do) any of the following:
    • 7.4.1 resell or otherwise make available the Pentagon Service, Website or Data without Pentagon prior written consent;
    • 7.4.2 furnish any false data (including false names, addresses, contact details) or engage in fraudulent use of credit/debit card numbers or other payment or debit or credit mechanisms;
    • 7.4.3 attempt to circumvent Pentagon’ security or network including accessing data not intended for Client, logging into a server or account Client are not expressly authorised to access, or probing the security of other networks (such as running a port scan);
    • 7.4.4 access the Pentagon Service or Website or Data in such a way as to, or commit any act that would or does, impose an unreasonable or disproportionately large load on Pentagon?s infrastructure;
    • 7.4.5 execute any form of network monitoring which would or might intercept data not intended for Client;
    • 7.4.6 send unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material. Client is explicitly prohibited from sending unsolicited bulk mail messages. This includes bulk mailing of commercial advertising, promotional, or informational announcements, and political or religious tracts. Such material may only be sent to those who have explicitly requested it. If a recipient asks to stop receiving email of this nature, Client may not send that person any further e-mail;
    • 7.4.7 create or forward “chain letters” or other “pyramid schemes” of any type, whether or not the recipient wishes to receive such mailings;
    • 7.4.8 send malicious e-mail, including flooding a user or site with very large or numerous e-mails;
    • 7.4.9 use in an unauthorised manner, or forge, mail header information.
  • 7.5 Client undertakes not to use or permit anyone else to use the Pentagon Service or Website or Data:
    • 7.5.1 to send or receive any material which is grossly offensive, of an indecent, obscene or menacing character, blasphemous or defamatory of any person, in contempt of court or in breach of confidence, copyright, rights of personality, publicity or privacy or any other third party rights;
    • 7.5.2 to cause annoyance, inconvenience or needless anxiety;
    • 7.5.3 to intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
    • 7.5.4 for a purpose other than which Pentagon have designed them or intended them to be used;
    • 7.5.5 for any fraudulent purpose;
    • 7.5.6 other than in conformance with accepted Internet practices and practices of any connected networks; or
    • 7.5.7 in any way which is calculated to incite hatred against any ethnic, religious or any other minority or is otherwise calculated to adversely affect any individual, group or entity.
  • 7.6 Pentagon reserves the right to block access to and/or to edit or remove any material which in Pentagon’ reasonable opinion may give rise to a breach of Clauses 5, 7, 9 or 12.
  • 7.7 Pentagon may suspend use (either generally or in respect of particular persons) of the Pentagon Service and/or Website and/or access to Data (in any preceding case, in whole or in part) if:
    • 7.7.1 there is use of, or access to, the Pentagon Service and/or Website and/or Data via Client’s registered account by any person being other than Client (and also, ion the case of a Subscription, by any person not being an Authorised User);
    • 7.7.2 the number of Users permitted to access the Pentagon Service and/or Website and/or Data exceeds the number of permitted Users according to the Package Attributes of a particular Package;
    • 7.7.3 the number of computers from which a User (and in the case of a Subscription, an Authorised User) is permitted to access the Pentagon Service and/or Website and/or Data exceeds the number of permitted computers in respect of that User (and in the case of a Subscription, an Authorised User);
    • 7.7.4 Client breaches any of Clauses 3, 4, 7, 8 or 9;
    • 7.7.5 there is use of, or access to, the Pentagon Service and/or Website and/or Data via Client’s registered account in contravention of this Agreement (and any Contract);
    • 7.7.6 Pentagon reasonably suspects that any person is using the Pentagon Service and/or Website and/or Data illegitimately, in breach of this Agreement (or any Contract) or fraudulently.
  • 7.8 If Pentagon suspends the Pentagon Service or Website or access to Data, Pentagon may refuse to restore the Pentagon Service or Website or access to Data until Pentagon receives an assurance from Client, in a form that Pentagon, acting reasonably, deems acceptable that there will be no further breach of the provisions of this Agreement (or any Contract).
  • 7.9 Client hereby indemnifies and holds Pentagon harmless from and against all claims, liabilities, proceedings, costs, damages, losses, costs or expenses incurred by Pentagon caused by, or in any way connected with any claims or legal proceedings arising from: (i) Client’s use of the Pentagon Service or Website or Data; or (ii) use of the Pentagon Service or Website or Data through any of Client’s password; which (in either preceding case) are brought or threatened against Pentagon by any person; (iii) any breach of this Agreement (or any Contract) by Client.
  • 7.10 If Client breaks (or anyone other than Client, with Client’s connivance breaks) any of the rules in this Clause 7, there may be a degradation in the quality and accuracy of Data for which Pentagon is not responsible to Client.

8. REGISTRATION AND SECURITY

  • 8.1 At any one time, many (if not all) Packages are only available to Client:
    • 8.1.1 if Client registers on the Website for the Pentagon Service (or part of it); and
    • 8.1.2 in most cases, that registration is accepted by Pentagon (which acceptance is indicated by the grant of a username and/or password) to Client.
  • 8.2 To register for the Pentagon Service, Client needs to supply Pentagon with the email address of a User; possibly (depending on the Package) the names of authorised Users of the Package, relevant postcodes, relevant email addresses; and possibly some other personal information. (Please see Pentagon’ Privacy Policy here for exactly what information is collected, how this information is treated and what is done with it.)
  • 8.3 If Pentagon accepts that registration (and a decision to accept or otherwise is at the exclusive absolute discretion of Pentagon) Pentagon may allocate a password to Client (and possibly a separate password for each Authorised User) to enable Client to better use the Pentagon Service. Client shall keep any such passwords strictly confidential (and shall procure that Authorised Users and keep any such passwords strictly confidential) and shall immediately notify Pentagon if any unauthorised User becomes aware of any such password or if there is any unauthorised use of Client’s (or a User’s) email address or any breach of security known to Client. Client agrees that any person to whom its (or one of its Authorised Users’) user name or password is disclosed is authorised to act as Client’s agent for the purposes of using the Pentagon Service and Website and Data. Client is therefore entirely responsible if Client (or an Authorised User) does not maintain the confidentiality of such passwords.
  • 8.4 As part of accessibility requirements and restrictions, in order for Client (or a User) to have access to the Pentagon Service, Pentagon may write small text files (such as cookies) or flash cookies (any such type of file or cookie being “Licence Files”) onto a User’s particular computer, so as to police the number of computer’s from which a User or Client can access the Pentagon Service (always in accordance with Package Attributes). Client shall not delete Licence Files; deletion of such Licence Files may prevent or delay access to the Pentagon Service and is the responsibility of Client. Furthermore, Client shall not (and shall procure that no person shall) attempt to copy or circumvent Licence Files. (Please see Pentagon’ Privacy Policy here for more on Licence Files.)
  • 8.5 Client warrants, undertakes and guarantees that all information provided to Pentagon is full and accurate.

9. INTELLECTUAL PROPERTY RIGHTS

  • 9.1 All intellectual property rights (including all copyright, patents, trade marks, service marks, trade names, database rights designs (including the “look and feel” and other visual or non-literal elements) whether registered or unregistered) in the Website and Pentagon Service and Data and information content on the Website or accessed as part of the Pentagon Service, any database operated by Pentagon, Software and all the website design, text and graphics, and their selection and arrangement, and all software compilations, underlying source code and Software (including applets and scripts) shall remain the property of Pentagon (or that of its licensors). Client shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights are reserved by Pentagon.
  • 9.2 None of the material listed in Clause 9.1 may be reproduced or redistributed without the prior written permission of Pentagon (subject always to the licence in Clause 7.1 and to Clause 7.2). Client may, however, retrieve and display the content of the Website temporarily on a computer screen or on other storage device) as part of the caching necessary to use the same for the legitimate purposes and within an authorised scope, each as set out in this Agreement (or any Contract). Client may not otherwise reproduce, modify, copy or distribute or use for any purposes any of the materials or content on the Website without the prior written permission of Pentagon.
  • 9.3 All rights (including goodwill and, where relevant, trade marks) in the Pentagon brand and in the Pentagon-Pentagon.cm.au name are owned by Pentagon (or its licensors). Other company names and brand or other names relating to particular goods and services mentioned on the Website are the trade marks or registered trade marks of their respective owners.
  • 9.4 Pentagon expressly reserves the rights to use, copy, modify, adapt, translate, publish and distribute world-wide any testimonials Client may provide to Pentagon about the Website, the Pentagon Service or Data and Pentagon may use Client’s name appended to the testimonial.
  • 9.5 All comments, suggestions, ideas, notes, drawings, concepts or other information disclosed or offered to Pentagon by Client or in response to solicitations by Pentagon regarding the Pentagon Service or the Website or Data (each being “Ideas”) shall be deemed and shall remain the property of Pentagon. Client understands and acknowledge that Pentagon has both internal resources and other external resources which may have developed or may in the future develop ideas identical to or similar to Ideas and that Pentagon are only willing to consider Ideas on these terms. In any event, any Ideas are not submitted in confidence and Pentagon assumes no obligation, express or implied by considering them. Without limitation, Pentagon shall exclusively own all now known or hereafter existing rights to the Ideas of every kind and nature throughout the world and shall be entitled to unrestricted use of the Ideas for any purpose whatsoever, commercial or otherwise without compensation to the provider of the Ideas.

10. LIMITATION OF LIABILITY

  • 10.1 This Clause 10 prevails over all other Clauses in this Agreement (and any Contract) and sets forth the entire Liability of Pentagon, and the sole and exclusive remedies of Client, in respect of:
    • 10.1.1 the performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement (or any Contract) or of any goods or services or provision, mis-provision or non-provision in connection with this Agreement (or any Contract) ; or
    • 10.1.2 otherwise in relation to this Agreement (or any Contract) or entering into this Agreement (or any Contract).
  • 10.2 In performing any obligation under this Agreement (or any Contract), Pentagon’ only duty is to exercise reasonable care and skill.
  • 10.3 Pentagon does not exclude its Liability for:
    • 10.3.1 its fraud; or
    • 10.3.2 death or personal injury caused by its Breach of Duty; or
    • 10.3.3 any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
    • 10.3.4 any other Liability which cannot be excluded or limited by applicable law.
  • 10.4 Subject to Clause 10.3, Pentagon does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Agreement (or any Contract).
  • 10.5 Subject to Clause 10.3, Pentagon shall not have any Liability in respect of any:
    • 10.5.1 indirect or consequential losses, damages, costs or expenses;
    • 10.5.2 loss of actual or anticipated profits;
    • 10.5.3 loss of contracts;
    • 10.5.4 loss of use of money;
    • 10.5.5 loss of anticipated savings;
    • 10.5.6 loss of revenue;
    • 10.5.7 loss of goodwill;
    • 10.5.8 loss of reputation;
    • 10.5.9 loss of business;
    • 10.5.10 loss of operation time;
    • 10.5.11 loss of opportunity; or
    • 10.5.12 loss of, damage to or corruption of, data, whether or not such losses were reasonably foreseeable or Pentagon or its agents had been advised of the possibility of incurring such losses. For the avoidance of doubt, Clauses 10.5.2 to 10.5.12 apply whether such losses are direct, indirect, consequential or otherwise.
  • 10.6 In respect of Liability in connection with, related to or arising under or in respect of Free Functionality, subject to Clause 10.3 and the exclusions and limits set out in this Agreement, the total aggregate Liability of Pentagon shall be limited to ?100.
  • 10.7 Subject to Clauses 10.3 and 10.6 and to the exclusions and limits set out in this Agreement (or any Contract), the total aggregate Liability of Pentagon shall be limited to the greater of: (a) ?5,000; or (b) 110% of the total sums paid and 110% of the total other sums payable (in aggregate) by Client to Pentagon under this Agreement (or any Contract), within the twelve months preceding the date on which a claim first arose.
  • 10.8 The limitation of Liability under Clauses 10.6 and 10.7 have effect in relation both to any Liability expressly provided for under this Agreement (or any Contract) and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement (or any Contract).
  • 10.9 In this Clause 10:
    • 10.9.1 “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
    • 10.9.2 “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement (or any Contract), including, without limitation, liability expressly provided for under this Agreement (or any Contract) or arising by reason of the invalidity or unenforceability of any term of this Agreement (or any Contract)(and for the purposes of this definition, all references to this “Agreement” or a “Contract” shall be deemed to include any collateral contract).

11. TERMINATION

  • 11.1 Client shall be entitled to terminate any Contract with Pentagon immediately at any time by notice in writing to Pentagon if:
    • 11.1.1 Pentagon is in material breach of any of its material obligations in respect of that Contract which are incapable of remedy; or
    • 11.1.2 Pentagon fails to remedy, where capable of remedy, any material breach of any of its obligations under such Contract after having been required in writing to remedy such breach within a period of no less than 28 days.
  • 11.2 Pentagon shall be entitled immediately or at any time (in whole or in part) to: i) suspend the Pentagon Service and/or Website and/or access to Data and or any rights or licences with respect to the same; ii) suspend Client’s use of the Pentagon Service and/or Website and/or access to Data and or any rights or licences with respect to the same; iii) suspend the use of the Pentagon Service and/or Website and/or access to Data for persons for whom Pentagon reasonably believes are connected (in whatever manner) to Client; and/or iv) terminate this Agreement or any Contract (at Pentagon’ option) immediately if:
    • 11.2.1 Client commits any material breach of this Agreement or a Contract;
    • 11.2.2 Client commits a breach of any of Clauses 3, 4, 5, 6, 7, 8 or 9;
    • 11.2.3 Pentagon suspects, on reasonable grounds, that Client has, might or will commit a material breach of this Agreement or a Contract; or
    • 11.2.4 Pentagon suspects, on reasonable grounds, that Client may have committed or be committing any fraud against Pentagon or any person.
  • 11.3 A party’s right to terminate this Agreement (or any Contract) shall not prejudice any other right or remedy which that party may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.

12. DATA PROTECTION AND ADVERTISEMENTS

  • 12.1 The Pentagon Privacy Policy forms part of this Agreement (and any Contract).
  • 12.2 Pentagon may place advertisements in different locations on the Website and at different points during use of the Pentagon Service. These locations and points may change from time to time. Any such advertisements may be delivered by a third party advertising company.
  • 12.3 No personal data (for example any personal name, address, email address or telephone number) will be used during the course of serving advertising, but, on behalf of Pentagon, a third-party advertiser or affiliate may place or recognise a unique “cookie” on Client’s browsers (see the Privacy Policy about this). This cookie will not collect personal data about Client nor is it linked to any personal data about Client. If Client would like more information about this practice and to know Client’s choices about not having this information used by any company, see the Privacy Policy about this which Client can click on for more information.

13. GENERAL

  • 13.1 In this Agreement (and any Contract):
    • 13.1.1 words denoting persons includes natural persons, partnerships, limited liability partnerships, bodies corporate and unincorporated associations of persons;
    • 13.1.2 clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement (or any Contract); and
    • 13.1.3 references to “include” and “including” shall be deemed to mean respectively “include(s) without limitation” and “including without limitation”.
  • 13.2 Nothing in this Agreement (or any Contract) shall be construed to create a joint venture, partnership or agency relationship between Client and Pentagon and neither party shall have the right or authority to incur any liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
  • 13.3 Except as expressly stated in this Agreement (or any Contract), all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
  • 13.4 Client may not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement (or any Contract) or any right, benefit or interest under it nor transfer, novate or sub-contract any of its obligations under it (without the prior written consent of Pentagon).
  • 13.5 Pentagon shall not be liable for any breach of obligations under this Agreement (or any Contract) where Pentagon is hindered or prevented from carrying out its obligations by any cause outside its reasonable control, including by lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any law, accident (or by any damage caused by any of such events).
  • 13.6 This Agreement (and any Contract) (and documents referred to in it by reference) contain all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement (or any Contract) except as expressly stated in this Agreement (or any Contract). Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (or any Contract) (unless such untrue statement was made fraudulently or was as to a matter fundamental to a party’s ability to perform this Agreement (or any Contract)) and that party’s only remedies shall be for breach of contract as provided in this Agreement (or any Contract). However, the Pentagon Service is provided to Client under its operating rules, policies, and procedures as published from time to time on the Website and subject to the FAQs on the Website.
  • 13.7 No waiver by Pentagon of any default of Client under this Agreement (or any Contract) shall operate or be construed as a waiver by Pentagon of any future defaults, whether or a like or different character. No granting of time or other forbearance or indulgence by Pentagon to Client shall in any way release, discharge or otherwise affect Client’s liability under this Agreement (or any Contract).
  • 13.8 If any provision of this Agreement (or any Contract) is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of this agreement shall not be affected.
  • 13.9 Unless otherwise stated within this Agreement (or any Contract), notices to be given to either party shall be in writing and shall be delivered by hand, electronic mail, (other than, if Client is sending a notice to Pentagon for the purpose of legal process) sent by fax or pre-paid post to the Client at the address supplied to Pentagon or to Getpentagon.com.au at its address as specified on the Website.
  • 13.10 No term of this Agreement (or any Contract) is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it other than any company which Pentagon reasonably considers to be part of its group.
  • 13.11 The provisions of Clauses 1, 2, 3, 4, 7.2, 9, 10, 11 and 13, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement (or any Contract).
  • 13.12 This Agreement (and any Contract) (and all non-contractual relationships between the parties) shall be governed by and construed in accordance with English law and both parties hereby submit to the exclusive jurisdiction of the courts of Australia.

14. RELEVANT INFORMATION

  • 14.1 The Website and the Pentagon Service is owned and operated by Innovotech Labs. Pty. Ltd. (ACN 162 980 707) that is registered in Australia with its registered office at 603/108 Bay St. Port Melbourne VIC 3207
  • 14.2 If Client has any queries please contact Pentagon at www.getgetpentagon.com.au.au and by email info@getgetpentagon.com.au.au
  • 14.3 These Terms and Conditions were most recently updated on 1st March, 2013.