Portal Terms & Conditions
This Client Portal is owned and managed by Deswik Mining Consultants (Australia) Pty Ltd ACN 130 036 832 ('our', 'us' or 'we'). These Portal Terms & Conditions apply in relation to your use of our Client Portal and by accepting these terms you agree to be legally bound by these Portal Terms & Conditions.
Rights of Use
- We grant you a limited, revocable licence to access and use the Client Portal and its content in accordance with these Portal Terms and Conditions.
- Subject to the confidentiality obligations in clause 7, you may display, print or download content from the Client Portal for the purposes of information and any purposes expressly permitted under Deswik’s End User Licence Agreement (EULA) or under any other agreement we have entered into with you.
- You cannot use our Client Portal or any part of it for any Commercial Use or for any public display (commercial or non-commercial) other than as permitted under the EULA or under any other agreement we have entered into with you.
Your Client Account
- When providing us with your client name and contact details, or the details of employees, contractors or other authorised personnel in your team or business unit who will have access to the Client Portal, you must provide accurate and comprehensive information and ensure that we are promptly informed of any changes to that information.
- You must ensure that you keep the login details we provide to you for your Client Account secure and do not provide your login details to any other person.
- We take no responsibility for unauthorised access to your information or files on the Client Portal where you have breached this clause 2 and you indemnify us in accordance with clause 12.2 for such a breach.
Managing your Business Unit in the Client Portal
- We will link the Client Accounts of your Business Unit’s authorised personnel and provide specific files and folders that can only be accessed by users within the Business Unit.
- You must provide us with the name, job title and contact details of a person within your team or business (Customer Administrator) who will administer all information, users and folders within your Business Unit.
- The Customer Administrator must specify for us the email addresses or domain names that can be used by us to identify, create and approve new users for a Client Account to be joined to your Business Unit.
- We will create a Client Account for and provide access to new users who have an email address or domain name that correspond with those provided by the Customer Administrator in accordance clause 3.3.
- You must notify us of any change in Customer Administrator or in the email addresses or domain names previously specified.
- Where a user in your Business Unit updates their profile to change their email address, name of business unit or company name, or changes that information on a pre-login page, we may log that user off and their account may be suspended until their access, and the changes to their details, has been confirmed and approved by the Customer Administrator.
- We do not accept any liability for creating a Client Account and providing access to new users where the email addresses or domain name corresponds with those given by the Customer Administrator or are confirmed and approved by the Customer Administrator.
Notwithstanding anything in this clause 3, we will not actively monitor your Business Unit and the Customer Administrator is responsible for ensuring:
- only your authorised personnel have a Client Account that is approved to access your Business Unit;
- that where any employees, contractors or other authorised personnel, who hold a Client Account connected or linked to the Business Unit, and are no longer employed, contracted or work within your team or business unit, that user is disabled or removed from the Business Unit.
- Each user in your Business Unit is responsible for the location of any uploaded or downloaded files and we are not responsible for any unauthorised access to or use of files uploaded to or downloaded from any shared folders within your Business Unit by authorised Client Accounts.
Your use of the Client Portal
- You must not upload, store or use any data or information on the Client Portal that is Prohibited Content or is breach of other laws or obligations on you.
- You must not use the Client Portal for file storage purposes. We will remove and destroy files uploaded in the Client Portal after the expiry of 4 months from the date of upload.
- You must not do anything which alters the Client Portal, or interferes with or affects its working other than as intended or as agreed by us in writing. This includes removing anything from it, adding anything to it, linking it to or from another website.
In using our Client Portal, you must not use or launch any automated system including (without limitation) any offline readers, spiders or robots that access our Client Portal in a way that:
- sends a larger number of request messages to our servers or to other users of our Client Portal than can reasonably be produced by a human in the same period using a conventional on-line web browser;
- sends spam to any other user;
- annoys or harasses any other user;
- collects or harvests any personally identifiable information;
- stores, permanently downloads or redistributes content from our Client Portal other than as intended or as specifically agreed by us in writing;
- circumvents, disables or otherwise interferes with any security-related features of the Client Portal or contains features that prevent, limit or restrict use or copying of any content from our Client Portal;
- attempts to decompile or reverse engineer any software contained on the Client Portal; or
- transfers the materials to another person or 'mirror' the materials on any other server.
Our software support services
- In order to provide you with software support services and fulfil the Permitted Purpose, we may be required to create a copy of and modify one or more of your files on the Client Portal, including creating a local copy on our server. You consent to such use and warrant that such use does not breach any third party Intellectual Property Rights and is not in breach of other laws or obligations on you.
Where we provide software for testing or demonstration purposes, that software is provided for information purposes only and:
- is intended to give a general description only;
- may include technical or typographical errors;
- may not be resold or used for any Commercial Use.
Intellectual Property Rights
- We own or are licensed to use the Intellectual Property Rights in the Client Portal, including the software coding and layout.
- Any software, our Confidential Information and other Protected Material provided or made available to you via the Client Portal by us is either owned or licensed by us. We hold or licence all Intellectual Property Rights in such software, Confidential Information and other Protected Material.
- You acknowledge and agree that any Intellectual Property Rights arising from the further development of our software, the development of software on your behalf or our Confidential Information are owned by us.
- No title in our Client Portal, software, Confidential Information and other Protected Material transfers to you and you obtain no rights, express or implied, other than those specifically granted in these Portal Terms and Conditions.
- No part of our Client Portal, software, Confidential Information and other Protected Material provided or made available to you via the Client Portal by us, may be reproduced, stored, transmitted or provided to any third party without our written permission.
- You warrant that any data or information provided, made available or uploaded by you via the Client Portal does not breach any third party Intellectual Property Rights and is not used in breach of other laws or obligations on you.
You acknowledge that:
- Confidential Information is a valuable asset which must be retained in confidence and withhold from disclosure and availability to others;
- use of the Client Portal will give rise to circumstances where either you or us, (Disclosing Party, as applicable) may need to disclose to the other party (Recipient) information of a confidential and proprietary nature which the Disclosing Party wishes to remain confidential.
- The Recipient will ensure that the Confidential Information and all documents and materials which contain or record the Confidential Information are stored safely and securely.
The Recipient will:
- keep the Confidential Information in strict confidence;
- not disclose or allow the Confidential Information to be disclosed to any person without the prior written consent of the Disclosing Party;
- not use or allow the Confidential Information (or any part of it) to be used except for the Permitted Purpose and will not make any use of the Confidential Information or any part of it to the disadvantage or detriment of the Disclosing Party;
- not without the prior written consent of the Disclosing Party, copy or duplicate or make any notes or memoranda relating to the Confidential Information or any part of it except for the Permitted Purpose.
The above clause 7.3 does not apply to information:
- after it becomes generally available to the public, other than because of a breach of these provisions; or
- which the Recipient receives from a third person legally entitled to possess the information and to disclose it to the Recipient.
- which was in the Recipient’s possession before the date it was acquired from the Disclosing Party, as evidenced by written records.
Upon termination of your Client Account or cessation of the Client Portal, unless otherwise agreed between the parties in writing:
- you must cease to use our Confidential Information (or any part of it) provided to you by us for the Permitted Purpose and upon our request, immediately return all materials and documents which contain, record or relate to that Confidential Information; and
- we will cease all use of your Confidential Information (or any part of it) provided by you to us for the Permitted Purpose, except to the extent that information is required in order to comply with law, regulation or archival purposes, and will destroy all materials uploaded into your Client Account (other than that Confidential Information which is in a folder connected or linked with a Business Unit Account which continues in effect).
- The obligations under this clause 7 will survive notwithstanding any termination of your Client Account or cessation of the Client Portal, unless or until the Confidential Information is lawfully made public.
- You acknowledge that:
- We take active steps to maintain the confidentiality of your data and use SSL certificates to encrypt the exchange of data.
- We may (but are not obliged to) monitor or remove any Prohibited Content on the Client Portal at any time and at our sole discretion.
- We reserve the right to suspend, terminate or otherwise deal with your access to the Client Portal at any time, without notice to you, including in the event of a breach of these Portal Terms & Conditions or a breach of the EULA by you.
- On termination of these Portal Terms & Conditions we will remove and destroy all material in the Client Portal and any copies of files from the Client Portal in our possession or control, except to the extent that the copies are required in order to comply with law, regulation or archival purposes.
- Nothing in this clause 9 is to be interpreted as our accepting any liability and to the maximum extent permitted by law we disclaim any and all responsibility to you.
Compliance with laws
- You must not use this Client Portal for any purpose or in any way which is unlawful. If you access this Client Portal you do so on your own initiative and at your sole risk. You are responsible for compliance with applicable laws.
- We make no representation that the information and services available through the Client Portal are appropriate for use in other locations or that they comply with any legal or regulatory requirements of such other locations. If you choose to access our Client Portal you do so at your own risk and on your own initiative and are responsible for compliance with local laws, to the extent those local laws are applicable.
While we invest in security measures to protect our Client Portal and the integrity of anything you download or upload to our Client Portal, given the nature of the internet we do not represent or warrant that:
- you will have uninterrupted or error-free access to or use of the Client Portal by any method;
- any loss or damage will not occur as a result of your access to and use of our Client Portal or any information on our Client Portal or accessed from our Client Portal;
- the Client Portal or any files available for downloading will be error-free or free from viruses, faults or defects or that any bugs, viruses, Trojan horses or other corrupting programs will not be transmitted to or through our Client Portal by any third party;
- the content of the Client Portal is accurate, complete or, to the extent permitted at law, suitable for a particular purpose. You must rely on your own judgment;
- there will not be any unauthorised access to or use of our secure servers which may result in your personal or financial information being accessed;
- your internet or mobile service provider will allow you access to the Client Portal; or
- your computer, mobile or other hardware devices will allow you access to the Client Portal.
To the maximum extent permitted by law, we, and our Affiliates disclaim all warranties, express or implied, and any and all liability in respect of your access to and use of our Client Portal and any loss or damage suffered or incurred by a person for any reason including (without limitation):
- using or relying on any of the information provided in or obtained through our Client Portal;
- its useability, inability to use the Client Portal or the services offered through it
- any of the matters referred to in clauses 2.3, 3.7, 3.9, 5, 6.6, 9 and 10.
- We are not liable, and each of our Affiliates is not liable, for any direct, indirect, incidental, special, punitive or consequential liability, loss (including but not limited to loss of data, income, profit or opportunity, loss of or damage to property and claims of third parties, death, personal injury or any loss, damage or expense) you incur or suffer that arises out of your access to, use of or reliance on our Client Portal or our services or any of the content of our Client Portal or your inability to use it. This applies even if we have been informed that the liability, loss, damage or expense will or may result.
- While we invest in security measures to protect our Client Portal and the integrity of anything you download or upload to our Client Portal, given the nature of the internet we do not represent or warrant that:
- Our Client Portal is provided on an 'as is' and 'as available' basis for information purposes only.
You continually indemnify us and our Affiliates against any claim or proceeding that is made, threatened or commenced and against any liability, loss, damage or expense (including legal costs on a full indemnity basis) any of them incurs or suffers, as a direct or indirect result of any of the following:
- your use of and access to our Client Portal;
- a breach of these Portal Terms & Conditions;
- a wilful, unlawful or negligent act or omission by you;
- your violation of any third party right or law, including (without limitation) any Intellectual Property Rights, defamation or criminal laws; or
- a claim that you caused damage to a third party.
- You may not transfer or assign these Portal Terms & Conditions or any rights or licences granted under these Portal Terms & Conditions. We may transfer or assign these Portal Terms & Conditions and your account without restriction or notification.
- We reserve the right to vary these Portal Terms & Conditions from time to time. The latest Portal Terms & Conditions will be made freely available to users on our Client Portal. You agree to be bound by the varied Portal Terms & Conditions by continuing to access our Client Portal.
- The fact that we fail to do, or delay in doing, something we are entitled to do under these Portal Terms & Conditions, does not amount to a waiver of any obligation of, or breach of obligation by you. A waiver by us is only effective if it is expressly given in writing.
- If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of these Portal Terms & Conditions are not affected.
'Affiliates' means our officers, employees and other personnel, agents, contractors, partners, principals, licensors, service providers and members.
‘Business Unit Account’ means the group we create to allow your Client Account to be joined with other Client Accounts of those persons in your team or business to allow you to share or view information or materials on the Client Portal more conveniently.
‘Client Account’ means the account we create for you to access and use the Client Portal.
'Commercial Use' includes (without limitation):
a. sale of access to our Client Portal or our services by way of another website;
b. using our Client Portal or our services for the purposes of selling goods or services or for advertising goods or services or for obtaining subscription revenue other than as expressly permitted by our Client Portal;
c. any use of our Client Portal or our services for the purpose of competing with or displacing our Client Portal or services; or
d. soliciting any users of our Client Portal for any commercial purpose other than as intended.
‘Confidential Information’ means know-how, ideas, information, concepts, formulations, documents, manuals, literature, materials, artwork, designs, financial and business information and marketing strategies and any Intellectual Property Rights, which are confidential and proprietary to the Disclosing Party and which are disclosed by the Disclosing Party to the Recipient, whether disclosed orally, visually, in writing or in document form.
‘EULA’ means the software end use licence agreement entered into between us and you.
'Intellectual Property Rights' means copyright, trade marks (whether registered or not), patents, patent applications, eligible circuit layouts, moral rights, service marks, trade names, registered designs, unregistered design rights, know how, trade secrets, domain names, internet addresses, rights in confidential information and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.
‘Permitted Purpose’ means, in the case of us, the provision of our services, including software support services to you, and in your case the access and use of the Client Portal, our services and licensed software.
'Prohibited Content' includes content that:
a. is abusive, threatening, obscene, vulgar, offensive, defamatory, hateful, discriminatory, unlawful, pornographic, racist, sexually-oriented or otherwise considered by the us as inappropriate;
b. contravenes any applicable laws (including without limitation laws concerning Intellectual Property Rights); or
c. infringes the rights of a third party (including without limitation laws concerning Intellectual Property Rights, privacy or personal or proprietary rights)
‘Protected Materials’ means any information, documents or materials protected by Intellectual Property Rights or under an agreement between you and us.
'you', 'your' means the person accessing and using our Client Portal.