The terms and conditions below apply to all publications published by Cornwall Insight. If you have any queries or concerns, please contact us on +61 406 238 023 before placing your order.
ACL: the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended from time to time.
Agreed Purposes: the supply of the Publications by Cornwall Insight to the Subscriber in accordance with these Conditions.
Annual Subscription Fee: the annual subscription fee notified by Cornwall Insight to the Subscriber in advance of the Contract and payable in accordance with clause 5 or as otherwise agreed in writing during the course of the Contract.
Business Day: a day other than a Saturday, Sunday or public holiday in Victoria, Australia when banks are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.4.
Contract: the contract between Cornwall Insight and the Subscriber for the supply of Publications in accordance with these Conditions.
Cornwall Insight: Cornwall Insight Australia Pty Limited ACN 633 120 224.
Corporations Act: Corporations Act 2001 (Cth)
Data Controller: has the meaning given to it in the Data Protection Legislation.
Forum: any one or more forums that are provided by Cornwall Insight in accordance with these Conditions.
Forum Services: the provision of a Forum for discussion and Q&A on particular topics supplied by Cornwall Insight to the Subscriber as set out in these Conditions
Forum Venue: the venue where a Forum takes place, as advertised by Cornwall Insight prior to the Forum.
Further Subscription Period: has the meaning given in clause 5.3
GST: the goods and services tax under the GST law as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended from time to time.
Initial Subscription Period: has the meaning given in clause 5.1.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), improvements, modifications derivations and discoveries in or related to Cornwall Insight’s business and services and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Insolvency Event: in respect of a party to the Contract, any one or more of the following events or circumstances:
(a) being in liquidation or provisional liquidation or under administration;
(b) having a Controller or analogous person appointed to it or any of its property;
(c) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(d) being unable to pay its debts or being otherwise insolvent;
(e) becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
(f) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
(g) any analogous event or circumstance under the laws of any jurisdiction; or
(h) taking any step or being the subject of any action that is reasonably likely to result in any of the above occurring,
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other party to the Contract (which approval is not to be unreasonably withheld or delayed).
Permitted Recipients: the parties to this Contract, the employees of each party and any third parties engaged to perform obligations in connection with this Contract.
Personal Information: information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Privacy Laws: the Privacy Act 1988 (Cth) and the Australian Privacy Principles (as contained in the Privacy Act 1988 (Cth)).
Publication: the publication or publications subscribed to by the Subscriber following payment of one or more Annual Subscription Fees.
Subscriber: the person or firm who purchases a Subscription from Cornwall Insight.
Subscription: the annual subscription to a Publication or Publications or Forum Services supplied by Cornwall Insight to the Subscriber in accordance with these Conditions.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email
(d) Headings are for convenience only and do not affect the interpretation of this Agreement.
(e) The singular includes the plural and vice versa.
(f) Words that are gender neutral or gender specific include each gender.
(g) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
(h) No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it.
2. COMMENCEMENT AND BASIS OF CONTRACT
2.1 Submitting the relevant subscription order with Cornwall Insight constitutes an offer by the Subscriber to purchase a Subscription in accordance with these Conditions.
2.2 The offer shall only be deemed to be accepted when Cornwall Insight issues written acknowledgment at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Subscriber seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, including in particular any terms which the Subscriber seeks to impose in any purchase order or similar.
3. THE PUBLICATIONS
3.1 Cornwall Insight shall supply the requested Publication/s to the Subscriber for one year following payment of the Annual Subscription Fee (commencing on the first Publication published following payment). Such supply may be via email delivery (to an address as advised by the Subscriber) or via access to an online portal.
3.2 Whilst Cornwall Insight will use all reasonable endeavours to ensure that Publications are published in accordance with their advertised publication schedules, there may be circumstances beyond Cornwall Insight’s control which delays a Publication and time shall not be of the essence for the publication of any particular Publication.
3.3 Cornwall Insight shall have the right to make any changes to the Publications which are necessary to comply with any applicable law or regulatory requirement, or which do not materially affect the nature or quality of the Publications.
3.4 In the event that access to the Publications is given electronically, the Publications may only be downloaded by the specified users (or the amount of users, as the case may be) as agreed in advance between Cornwall Insight and the Subscriber.
3.5 Cornwall Insight warrants to the Subscriber that the Publications to which the Subscriber subscribes will be prepared using reasonable care and skill.
3.6 Cornwall Insight may at any time change the frequency, format or issue date of any of its Publications.
4. THE FORUMS
4.1 Cornwall Insight warrants that the Forums will be provided and delivered using reasonable care and skill.
4.2 Forum topics (along with venues and timings) will normally be published in advance and made available on Cornwall Insight’s website. Cornwall Insight reserves the right to make any changes to the Forum topic or format which does not materially affect the nature or quality of the services provided.
4.3 Where any Forums are provided online, it is the Subscriber’s responsibility prior to placing any order to ensure that its technology is compatible with the systems used by Cornwall Insight (details of which can be provided upon request). Due to the inherent nature of the internet, Cornwall Insight cannot be responsible for any disruption or disturbance which is not within Cornwall Insight’s reasonable control. The Subscriber must comply with any instructions given by Cornwall Insight both before and during any electronic Forum and Cornwall Insight shall not be responsible for any disruption in service following any failure to comply with such instructions.
4.4 The Subscription shall be payable in full regardless of the Subscriber’s level of attendance at the Forums.
4.5 The Subscriber may send up to the number of representative(s) to each Forum as agreed in writing between Cornwall Insight and the Subscriber.
4.6 Cornwall Insight may cancel or reschedule a Forum or change a Forum Venue at any time prior to the Forum and for any reason. In these circumstances, Cornwall Insight’s liability shall be limited to a credit note of the Subscription pro-rata in the case of cancellation only.
5. CHARGES, PAYMENT AND SUBSCRIPTION PERIOD
5.1 The Subscriber shall pay for the Subscription annually in advance by payment of the Annual Subscription Fee, at which point the Subscription shall continue for one year from the date of payment (Initial Subscription Period).
5.2 The Annual Subscription Fee may be increased in each year at any time prior to any subsequent Annual Subscription Fee becoming due.
5.3 At the end of the Initial Subscription Period, the Subscription shall continue for a further 12-month period (Further Subscription Period) and so on with further 12-month subscription periods, until terminated in accordance with clause 9.
5.4 The Subscriber shall pay each invoice submitted by Cornwall Insight:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Cornwall Insight, and
time for payment shall be of the essence.
5.5 All amounts payable by the Subscriber are exclusive of GST. Where any taxable supply for GST purposes is made by Cornwall Insight to the Subscriber, the Subscriber shall, on receipt of a valid tax invoice from Cornwall Insight, pay to Cornwall Insight such additional amounts in respect of GST as are chargeable on the supply of the Subscription at the same time as payment is due for the Subscription.
5.6 If the Subscriber fails to make any payment due to Cornwall Insight by the due date for payment, then the Subscriber shall pay interest on the overdue amount at the rate of 2% per cent per annum above the rate fixed by the Penalty Interest Rates Act 1983. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Subscriber shall pay the interest together with the overdue amount.
6. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of the Publications or any materials distributed during or in advance of Forums shall be owned by Cornwall Insight. The Publications and materials are provided for the sole internal use of the Subscriber and may not be copied or distributed to any third party without Cornwall Insight’s written consent and Cornwall Insight reserves the right to suspend or cancel any Subscription without notice (and without refund) if it has reasonable belief that the Subscriber has breached the terms of this clause or of any other clause limiting the amount of users of the services.
7. DATA PROTECTION
7.1 Each party shall comply with all the obligations imposed under the Privacy Laws. This clause is in addition to and does not relieve, remove, or replace, a party’s obligations under the Privacy Laws.
7.2 Without prejudice to the generality of clause 7.1, Cornwall Insight shall, in relation to any Personal Information processed in connection with the performance by Cornwall Insight of the its obligation under the Contract:
(a) only collect, use and disclose Personal Information strictly for the purpose for which that Personal Information was disclosed to it;
(b) unless otherwise instructed by the Client, only store Personal Information for the period necessary to fulfil that purpose and must destroy that information when it is no longer required and upon request from the Client;
(c) comply with any of the Client’s reasonable requests or directions in respect of the Personal Information;
(d) protect Personal Information it holds from misuse, interference and loss, as well as maintain/implement systems and processes to ensure the security of personal information;
(e) reasonably assist the Client to resolve any request for access, correction or a complaint in relation to Personal Information;
(f) promptly notify the Client if it is aware of any misuse, interference, loss, unauthorised access, modification or disclosure of Personal Information by itself or its personnel; and
7.3 only disclose Personal Information to others in compliance with these requirements after obtaining the Client’s consent.
7.4 The Subscriber shall indemnify Cornwall Insight against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Cornwall Insight arising out of or in connection with the breach of the Privacy Laws or this clause 7 by the Subscriber, its employees, agents or sub-contractors.
8. LIMITATION OF LIABILITY
8.1 Except as the Conditions specifically state, or as contained in any express warranty provided in relation to the Services, the Contract does not include by implication any other term, condition or warranty in respect of the quality, acceptability, fitness for purpose, description or performance of the Services or any contractual remedy for their failure.
8.2 If the Client is a consumer (within the meaning of the ACL) nothing in these Conditions restricts, limits or modifies the Client’s rights or remedies against Cornwall Insight for failure of a statutory guarantee under the ACL.
8.3 If clause 8.2 does not apply, then other than as stated in these Conditions or any written warranty statement in the Engagement Letter, Cornwall Insight is not liable to the Client in any way arising under or in connection with the sale, use of, or any other dealings with the Services by the Client or any third party.
8.4 Nothing in the Contract shall limit or exclude Cornwall Insight’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation.
8.5 Subject to clause 8.1, Cornwall Insight shall not be liable to the Subscriber, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss,
8.6 except to the extent of any liability imposed under the ACL.When preparing the Publications and Forums, Cornwall Insight makes use of information gathered from a variety of sources (including from market participants and information in the public domain) that has not been subject to independent verification by Cornwall Insight. Whilst Cornwall Insight considers that the information supplied from its sources is accurate, no warranty can be given as to the accuracy of the same and Cornwall Insight shall not be responsible for any errors arising as a result of such information being incorrect or inaccurate. The views of any Forum presenter (whether given during question and answer sessions or otherwise) during the Forums are the presenter’s own views given from his understanding of the material provided and no warranty is given as to the accuracy or otherwise of such views.
8.7 Cornwall Insight makes no warranty as to the results to be obtained from the Subscriber’s use of the information contained in the Publications or delivered in the Forums for any particular purpose.
8.8 Cornwall Insight makes use of third party suppliers for Forum Venues which may include refreshments and/or a meal. Cornwall Insight shall incur no liability in relation to the Forum Venue or such other services provided by the Forum Venue which remains the responsibility of the Forum Venue provider/owner, and the Subscriber’s representative must follow all instructions given by the Forum Venue provider, including in particular any health and safety requirements (whether given via the Forum presenter or otherwise).
8.9 Subject to clause 8.4, Cornwall Insight’s total liability to the Subscriber, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the Annual Subscription Fee currently in force for the Publications subscribed to by the Subscriber..
8.10 Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of Services which cannot be excluded, restricted or modified.
8.11 This clause 8 shall survive termination of the Contract.
9.1 Cornwall Insight may terminate the Subscription on three months’ notice at any time if for whatever reason it ceases to publish the Publication or any Forums to which the Subscriber subscribes. In those circumstances, the Subscriber shall be entitled to a pro-rata refund for any Annual Subscription Fee paid in advance.
9.2 The Subscriber may terminate the Subscription upon at least three months’ written notice ending at the end of the Initial Subscription Period or any Further Subscription Period, as applicable.
9.3 The Subscriber may terminate the Subscription immediately on notice if it does not agree with any increased Annual Subscription Fee provided that such notice is served within one month of the Subscriber being notified of any increased Annual Subscription Fee by Cornwall Insight.
9.4 Without limiting its other rights or remedies, either party may terminate the Subscription with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
(b) Insolvency Event occurs
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.5 Without limiting its other rights or remedies, Cornwall Insight may terminate the Subscription with immediate effect by giving notice to the Subscriber if the Subscriber fails to pay any amount due on the due date for payment.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Subscriber shall immediately pay to Cornwall Insight all of Cornwall Insight’s outstanding unpaid invoices and interest and, in respect of any Subscription (including parts of a year) supplied but for which no invoice has been submitted, Cornwall Insight shall submit an invoice, which shall be payable by the Subscriber immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
11. GENERAL PROVISIONS
11.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract (save for any obligation to make a payment) if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) Cornwall Insight may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Subscriber shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
11.3 Entire agreement.
(a) 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.
(b) Each party agrees that it 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 or negligent misstatement based on any statement in this agreement.
11.4 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.8 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
11.9 Disclaimer of Partnership.
(a) Unless expressly stated otherwise, nothing contained in these Conditions or the Contract is to imply or constitute a partnership, joint venture or employment relationship between the parties.
(b) No party has the right or authority to assume, create or incur any commitment, liability or obligation of any kind against, or in the name of, or on behalf of, any other party except as expressly provided in this Agreement
11.10 Counterparts. The Contract may be executed in any number of counterparts all of which taken together constitute one instrument. All parties agree that a facsimile of a party’s signature or other electronically transmitted signature of a party is sufficient to indicate their approval of the terms of the Contract and these Conditions and agree to be so bound.
11.11 Each Party Must Do Whatever Is Necessary. Each party must do or refrain from doing (as the case may be) whatever is reasonably necessary to give full effect to these Conditions, both before and after the Contract is executed. This may include executing a document or carrying out an act.
11.12 These Conditions Continue. These Conditions continue to have effect and do not merge where necessary to ensure the intentions of the parties.
11.13 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of Victoria, Australia.
11.14 Jurisdiction. Each party irrevocably agrees that the courts of Victoria, Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.