Terms and Conditions of Use
The below terms and conditions (the Agreement) govern your access to and use of the BigDataCloud Website (located at https://www.bigdatacloud.net/) and BigDataCloud APIs (APIs) provided by us, BigDataCloud Pty Ltd (ABN 72 627 240 162).
Your BigDataCloud Account
Before accessing or using the APIs you must create an account on the BigDataCloud Website. Creation of an account on the BigDataCloud Website is subject to our approval.
By creating an account on the BigDataCloud Website or accessing and/or using the BigDataCloud Website or APIs, you are agreeing (on behalf of yourself, your company and all authorised users) to be bound by this Agreement (and any other terms and conditions referred to by it). You warrant that you have the authority to enter into this Agreement on behalf of yourself, your company (if your access relates to your work for a company) and all authorised users to this Agreement.
If you do not agree to be bound by this Agreement you may not create an account on the BigDataCloud Website and may not use or access the BigDataCloud Website or APIs.
Access and Use of the BigDataCloud Website and APIs
Subject to your continued compliance with this Agreement, we grant to you during the Term a personal, non-transferable, non-exclusive and revocable licence to access the BigDataCloud Website and use and access the APIs:
(a) in the case of a BigDataCloud Free Licence, solely for your own purposes; or
(b) in the case of a BigDataCloud Paid Licence, solely for your or your companies own commercial purposes, including to resell indirect access to the APIs to a third party on terms no less onerous and protective of us than these terms.
You must only access and use the BigDataCloud Website and APIs in accordance with any documentation or written instructions provided to you by us.
You acknowledge and agree that the BigDataCloud Website and APIs are subject to limitations (including with respect to completeness, availability, update frequency and response times), which may be explained in further detail in the relevant documentation and which you agree and represent to us that you have read and understood.
As an example of one particular limitation, we may restrict the number of API calls you make during a specified period: without a fee; with a fee; and overall. The details of this limitation applicable to each API are published in the relevant API documentation and updated from time to time.
You agree that any such limitations are reasonable given the technology involved (including the Internet generally) and to ensure the stability and integrity of the system for all of our customers. If any such limitations are exceeded, we may suspend your access and use of the APIs or terminate this Agreement you have with us (and thereby your rights to access and/or use the APIs).
In addition to the express limitations, you acknowledge and agree that we provide the BigDataCloud Website and APIs to you on an “AS IS” and “AS AVAILABLE” basis, without any warranty as to availability, performance (including that access or use will be uninterrupted or error-free), accuracy or completeness.
We are under no obligation to provide you with any updates or new releases relating to the APIs.
We may make available code samples, user manuals, specifications and other materials for the limited purposes of providing instructions to you on how to access and use the APIs. You may not use such materials for any other purposes (including to reproduce them or provide them to others).
You must provide us with such co-operation and support as we reasonably request to allow us to perform our obligations, including by: (a) ensuring that the information you provide to us is kept accurate and up-to-date, including by providing updates to us as soon as practicable after any information changes; (b) responding promptly to our communications; and (c) providing accurate and prompt responses to our requests for any information or documentation reasonably required by us in connection with this Agreement.
Your Username and Password
We may allocate you a username and password (and/or other such access codes, such as an authentication token) (referred to collectively as Login Details) for the purpose of gaining access to the BigDataCloud Website and APIs. You acknowledge that if you fail to provide the Login Details to us, we reserve the right not to provide you with services until you are able to provide the Login Details.
You must keep all Login Details secure and confidential at all times and must not disclose them to anyone else (except those of your employees who need to know them for the purposes of their employment). If you have reason to believe that this clause has been breached or that a third party has obtained unauthorised access to your Login Details, you must notify us immediately.
You agree that we cannot and do not know whether you have given your Login Details to other people (whether knowingly or not, and whether directly or indirectly). You therefore agree that you are responsible for all actions taken under your Login Details (whether knowingly or not, and whether directly or indirectly), and that we are entitled to treat requests and instructions provided by those people through such access as instructions originating from you.
If you become aware of any security issue or event which has or may have comprised the security or integrity of the BigDataCloud Website or APIs (of the systems or network on which they operate), you must inform us immediately and provide all assistance reasonably requested to prevent the security risk or mitigate the consequences.
You release and indemnify us and our officers, agents, employees and contractors from and against any and all Liability arising in connection with a failure by you to comply with this section and any access or use of the BigDataCloud Website and APIs by a person not authorised by you or us (if that person gained access to those systems by means of your Login Details, other than because of any breach of contract, negligence or other wrongful act or omission by us).
Intellectual property rights
You acknowledge and agree that we are the sole owner of all intellectual property rights in the BigDataCloud Website and APIs (including API names, conventions and request and response structure). Nothing in this Agreement assigns any intellectual property rights to you.
You will treat the BigDataCloud Website and APIs, and all other information we provide to you or you access from or via us as solely the subject of our intellectual property rights (including confidential information at law and under this agreement) and must not use it other than to the extent necessary to exercise any license we expressly grant you, as reasonably appropriate to obtain legal or tax advice or as required by law (including order of a court or agreed arbitrator). Where our only intellectual property rights in any such materials are rights pertaining to confidential information (as opposed to or in addition, for example, to copyright), your obligation not to use the materials does not extend in respect of information which has become public knowledge (other than as a result of your breach of any of our rights, including under this Agreement).
You agree to inform those who you deal with that intellectual property rights in the APIs embodied, used or revealed in or by your products are owned exclusively by us. You agree to include such notices of our intellectual property rights in all uses and disclosures of your products as we require from time to time. We may refer to your relationship with us in our marketing of all or any part of our business from time to time.
You must pay the fees for access to the APIs calculated in accordance with the relevant API documentation upon invoice by us.
Fees for access and use of the BigDataCloud Website and/or APIs may be calculated and payable on a different period as compared to the Term (for example, annual as opposed to monthly). In all events you will be liable to pay for access and use for the entirety of each payment period, whether the Agreement continues for the entire period or not.
Unless otherwise stated, all fees are payable in advance, not refundable and exclude GST. You must pay all fees without set off or deduction of any kind.
Any amount due to us under this Agreement and remaining unpaid after the date payment is due will bear interest, to accrue from day to day at the applicable Default Rate, from (and including) the date such amount is due until it is paid in full
You will be responsible for all Taxes payable in respect of the supply of the Services (other than tax on our income) and must pay to us all such Taxes on demand.
If any GST is payable on a Taxable Supply made under, by reference to or in connection with the Contract, the party providing the Consideration for that Taxable Supply must also pay the GST Amount as additional Consideration. This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly stated to be GST inclusive.
Changes to this Agreement
We may change this Agreement either by obtaining your consent or by giving you notice of the change. If we do not obtain your consent to a change, the period of notice required to be given depends on the nature of the change. If:
(a) the change will benefit you or have a neutral impact on you, we may make the change without giving you advance notice;
(b) the change is required to comply with any Law or lawful requirement of any regulatory body, to preserve or safeguard the security, performance or integrity of any network or system we use to provide our services (including the BigDataCloud Website and APIs) to our customers or to maintain any accreditation we are required to have at Law to perform particular services, we will give you a reasonable period of notice not exceeding 3 days, by sending an email describing the change to an email address you have provided as part of your account; and
(c) for all other changes, we will also give you at least 30 days’ notice prior to the change taking effect, explaining the nature of the change, by sending an email describing the change to an email address you have provided for that purpose.
We will post a new version of this Agreement on the BigDataCloud Website at or before the time the change takes effect.
General exclusion and operation of laws
Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.
You acknowledge and agree that:
(a) prior to entering into this Agreement you have been given a reasonable opportunity to examine and satisfy yourself regarding all goods and services which are the subject of this Agreement and that prior to entering into this Agreement you have availed yourself of that opportunity;
(b) at no time prior to entering into this Agreement have you relied on our skill or judgment and that it would be unreasonable for you to rely on any such skill or judgment; and
(c) where any acquisition of goods under this Agreement has been made by reference to a sample or demonstration model, prior to entering into this Agreement you have been given a reasonable opportunity to satisfy yourself that the goods correspond with the sample or demonstration model as to quality, state and condition; and to examine the sample or demonstration model for any apparent defects, and that you have availed yourself of that opportunity.
The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this agreement (by virtue of any law relevant to this agreement) is excluded.
Pursuant to s64A of the Australian Consumer law (under the Competition and Consumer Act 2010 (Cth)):
(a) this sub-clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if you establish that reliance on it would not be fair and reasonable;
(b) liability for breach of a guarantee conferred by the Australian Consumer law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51 - 53 of that Law, is limited:
(i) in the case of goods, to any one of the following as determined by us:
- the replacement of the goods or the supply of equivalent goods; or
- the repair of the goods; or
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired;
(ii) in the case of services, to any one of the following as determined by us:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
Except in relation to liability for personal injury (including sickness and death) and fraud, and subject to the preceding section (“General exclusion and operation of laws”), we shall be under no liability to you in respect of any loss or damage which may be suffered or incurred or which may arise directly or indirectly (including by our negligence) in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of us to comply with our obligations under this Agreement. The exclusion in this subclause covers all loss and damage, including direct, consequential, special, indirect and punitive loss and damage and including loss and damage reflecting loss of profits, loss of revenue and loss of goodwill.
Without limiting the preceding clause, you warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including the BigDataCloud Website, API documentation or publicity material produced by us.
You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation above, this Agreement shall inure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but must not inure to the benefit of any other persons. The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
You must indemnify, keep indemnified and hold us and our officers, agents, employees and contractors from and against any and all Liability arising in connection with a breach of this Agreement by you; your negligence, fraud, unlawful conduct and wilful misconduct; and your use of the results of the APIs.
Term and Termination
This Agreement commences on your first access or use of the BigDataCloud Website or APIs and, unless terminated earlier, continues for the period of a Term. Unless we provide notice to you or the Agreement is otherwise terminated, at the end of each Term this Agreement will be extended for a further Term.
We may terminate this Agreement immediately if: (a) you commit a material breach of your obligations under this Agreement; (b) your use is determined by us as being a risk to the ongoing integrity and stability of our system; or (c) an Insolvency Event occurs with respect to you.
We may also terminate this Agreement immediately: (a) for any reason by giving you at least 10 days’ prior written notice; or (b) if we determine that there has been or may be any activity which may have a negative impact on our business or reputation (including illegal activity or infringement of any third party rights).
If our services are provided to you on a periodic basis (for example, where we charge you a monthly or annual fee), unless otherwise agreed you may cancel your service by contacting us at email@example.com or through the BigDataCloud Website. For the avoidance of doubt, periodic fees are non-refundable on cancelation.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall at our election, be read down to the extent necessary to remove such invalidity, unenforceability or illegality or be deemed deleted.
Notices under this Agreement may be given by us sending the relevant notice by hand delivery, by mail or by email to any of the addresses specified by you as part of your registration processes in connection with this Agreement or any other address we consider may have a reasonable prospect of being received by you.
If the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion.
This Agreement shall be governed by and constructed according to the law of South Australia, Australia and the parties agree to submit to the jurisdiction of tribunals located in that place.
In this Agreement, unless the context requires otherwise:
BigDataCloud APIs means those application programming interfaces set out on the BigDataCloud Website (https://www.bigdatacloud.net/).
BigDataCloud Website means https://www.bigdatacloud.net/.
BigDataCloud Paid Licence means, in relation to an API, a licence of that type described on the BigDataCloud Website, selected and paid for by you.
BigDataCloud Free Licence means, in relation to an API, a licence of that type described on the BigDataCloud Website selected by you.
Consideration has the meaning given by the GST Law.
Default Rate in respect of an amount of money, means the rate of 1.5% per annum above the annual interest rate charged by Commonwealth Bank of Australia on overdrafts of the same amount.
GST has the meaning given by the GST Law.
GST Amount means in relation to a Taxable Supply the amount of GST payable in respect of that Taxable Supply.
GST Group has the meaning given by the GST Law.
GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
Input Tax Credit has the meaning given by the GST Law and a reference to an Input Tax Credit entitlement of a party includes an Input Tax Credit for an acquisition made by that party but to which another member of the same GST Group is entitled under the GST Law.
Insolvency Event means:
(a) in respect of a party being an individual – the party dies, ceases to be of full legal capacity or commits an act of bankruptcy or makes a composition with or assignment of his or her property in favour of creditors;
(b) in respect of a corporation – the party:
(i) stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(ii) is insolvent within the meaning of s95A of the Corporations Act 2001 (Cth), must be presumed by a court to be insolvent by reason of an event set out in section 459C(2) of that Act or fails to comply with a statutory demand (within the meaning of section 459F(1) of that Act);
(iii) has had an administrator appointed or any step preliminary to the appointment of an administrator taken, or has had a controller (within the meaning of s9 of the Corporations Act 2001 (Cth)) or similar officer appointed to all or any of its assets or business;
(iv) has had proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to, or order of, a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them; or
(v) if incorporated outside Australia, has become insolvent or suffered any event or similar event to those set out in paragraphs (i) to (iv) which would restrict its business operations or cause those operations to be placed under the control of a person other than its directors under the laws of its place of incorporation.
Law means any statute, regulation, order, rule, subordinate legislation or other government requirements of any place, or any document enforceable under any of them, which is applicable to this Agreement or the performance of the parties under it.
Liability includes any loss, damage, cost, expense (including the full amount of any legal expenses) and other liability whatsoever, whether prospective or contingent, and whether ascertainable or not.
Tax includes any tax, levy, impost, deduction, charge, rate, duty, or withholding that is levied or imposed by a governmental agency, and any related interest, penalty, charge, fee or other amount.
Term means a calendar monthly or year, whichever you have elected in your account.
We, us, or our means BIGDATACLOUD PTY LTD ABN 72 627 240 162.
You or your means the party seeking to access and/or use the BigDataCloud Website and/or APIs.