Pricing Prophets Terms & Conditions
BY CLICKING THE “AGREE” BUTTON YOU HEREBY AGREE TO ENTER LEGAL RELATIONS WITH PRICING PROPHETS PTY LTD (ACN 150 427 384) (“PRICING PROPHETS”) AND BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND YOU MAKE THIS IN CONSIDERATION OF THE VARIOUS PROMISES CONTAINED HEREIN.
1 Definitions and Interpretation
In this Agreement the following terms are defined as follows:
1.1 “Agreement” means these terms and conditions as amended from time to time.
1.2 “Client” means a person using the System for the purpose of getting expert opinion from a registered pricing expert
1.3 “Experts” mean individuals with industry expertise, experience and/or an interest in pricing goods and services.
1.4 “Fee” means the fee charged by Pricing Prophets to the Client in respect of the Expert Opinion.
1.5 “Feedback” means blogs and other social media, online surveys and questionnaires, comments, compliments, criticisms, discussions, forums, rankings, recommendations, responses, testimonials and other observations.
1.6 “Opinion” means a general, qualified and in-principle view from an Expert in response to and based upon the information provided by the Client before and during a pre-paid telephone conversation with the Expert the Client nominated, for the avoidance of doubt, it does not contain an optimum price recommendation.
1.7 “Site” means the website operated by Pricing Prophets at www.pricingprophets.com.
1.8 “System” means the Site and includes all applications, flows, forms, help files, procedures, processes, programs, questions & answers, software, technologies and templates, created, delivered, developed, enhanced, improved, owned, licensed or operated by Pricing Prophets and offered by Pricing Prophets to Users from time to time under this Agreement.
1.9 “User” means Clients and Experts and where the context permits, includes prospective, past, present and future Clients and Experts.
1.10 “Virus” means any form of computer adware, bot, hacking, malware, phishing, spider, spyware, trojan horse, virus, worm, or other type of malicious or harmful computer activity, application, executable, program or software.
1.11 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
1.12 Clients agree that this Agreement may not be construed adversely against Pricing Prophets solely because Pricing Prophets prepared it.
1.13 The singular includes the plural and vice-versa.
1.14 Person includes any individual, corporation, trust, partnership or any other entity.
1.15 The words “include” and “including” will be read to mean “includes, but is not limited to”.
2 How the System Works
2.1 Clients are able to review Expert profiles on the Site and purchase an Opinion from the Expert to be given during a prepaid teleconference.
2.2 The Client will be required to pay for the Opinion prior to the teleconference taking place and the teleconference is scheduled once payment has cleared.
2.3 Subject to clause 6.1, Pricing Prophets vets Experts who, once approved, have their profile uploaded on the Site.
2.4 The Client is able to choose any Expert and is not required to only use one Expert, or the same Expert on any given/subsequent occasion as they have previously consulted.
2.5 Pricing Prophets may remove an Expert from its Site for any reason without notice.
3 Registration, Account Details & Access
3.1 Prospective Users must:
3.1.1 Be 18 years of age or older;
3.1.2 Provide all necessary and / or requested personal and corporate information and / or documentation required by Pricing Prophets;
3.1.3 Have a valid and current credit card or Bank Account if they wish to be a Client;
3.2 The User is solely responsible for the safety, security and confidentiality of their access to the Site.
4 Fees, charges and payment
4.1 Clients are charged a Fee in accordance with Pricing Prophets then current price list.
4.2 The teleconference during which the Expert provides his or her Opinion is only scheduled once the Fee is paid in cleared funds.
4.3 Pricing Prophets reserves the right to increase fees or to institute new fees, upon reasonable notice provided to Users and/or posted at the Site.
4.4 Any phone calls conducted over a landline or cellular / mobile telephone network will be initiated by the client.
5 Client Warranties
Clients warrant to and agree with Pricing Prophets that:
5.1 it is authorized to enter into this Agreement for and on behalf of itself and any organization that it purports to represent;
5.2 it is under no legal or other impediment that may prevent it fully carrying out its obligations under this Agreement;
5.3 all information provided by the Client is true, correct and complete in every respect;
5.4 no information provided by it to Pricing Prophets will be false, inaccurate or misleading, abusive, vulgar, hateful, harassing, obscene, threatening, defamatory or violate any applicable law or regulation;
5.5 it will provide all necessary details required and is genuine and acting bona fide in describing to Pricing Prophets and its Experts, their enquiry;
5.6 it will not impersonate any person or entity or misrepresent any sponsorship, endorsement by or affiliation with any person or entity;
5.7 it will not engage in misleading or deceptive conduct;
5.8 it will not release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to Pricing Prophets or any User without Pricing Prophets’ or such User’s prior written approval;
5.9 it will not use the System for illegal purposes including without limitation by posting to the System information encouraging conduct that would constitute a criminal or civil offence;
5.10 it will not use any feature of the System to send spam, unsolicited commercial emails, bulk or mass communications, junk mail, chain emails, or engage in other flooding techniques;
5.11 it will not copy, translate, reproduce, communicate to the public, adapt, vary or modify anything on the Site or in the System without Pricing Prophets’ prior written consent;
5.12 it will not post to the System or otherwise propagate material of any kind which contains a Virus;
5.13 it will not take any action that imposes an unreasonable or disproportionately large load on the System or Pricing Prophets’ infrastructure;
5.14 it will not damage, decompile, destroy, disrupt, hack into, interfere with, modify, and/or reverse engineer any data, devices, files, hardware, passwords, resources, Site, software, System, licensed and/or operated by Pricing Prophets or do anything that compromises the security of the System; and
5.15 it will not use screen scraping, data mining or any similar data gathering and extraction technological devices on the System for the purpose of reproducing information contained on the System on or through any other medium.
Clients acknowledge and agree that:
6.1 Pricing Prophets uses it best endeavors to validate the appropriateness of Experts, however, it cannot and does not confirm an Expert’s qualifications, backgrounds, abilities or bona fides;
6.2 Pricing Prophets makes no representation in respect of and does not warrant the Opinion of any Expert;
6.3 Without a complete and in-depth understanding and analysis of the Client’s business, circumstances, competition, costs, customers, industry, market, products, services, strategies, strengths and weaknesses neither Pricing Prophets nor Experts are able to provide an unqualified, comprehensive and detailed Opinion or recommend an optimum pricing strategy for the Clients products and/or services;
6.4 Neither Pricing Prophets nor Experts make any representation, warranty or guarantee that the Opinion provided to Clients will be successful if implemented;
6.5 The information contained on the Site is general advice and should not be seen as a substitute for an Expert Opinion or other professional advice;
6.6 Pricing Prophets will not be liable for any loss or damage incurred by a Client as a result of any failure or delay in Pricing Prophets’ transmitting or providing any information to or from an Expert or removing any information from the Site;
6.7 Pricing Prophets may provide links and pointers to websites maintained by third parties from its Site which websites are not under the control of Pricing Prophets and Pricing Prophets is not responsible for the veracity, appropriateness, accuracy or contents of any linked website or any website link contained in any linked website; and
6.8 Pricing Prophets will not be liable for any damages or loss arising in any way out of or in connection with or incidental to any information or third party service provided by or through any linked websites whether linked to or from Pricing Prophet’s Site.
Clients agree and acknowledge that:
7.1 Pricing Prophets may provide various opportunities for clients to provide Feedback, including Feedback regarding Experts and the service provided by Pricing Prophets.
7.2 Feedback must be accurate, fair, honest and reasonable and must be capable of substantiation.
7.3 Feedback may consist of comments and ratings left by clients regarding Experts.
7.4 Pricing Prophets may calculate a composite Feedback score regarding Experts based on these individual ratings and comments.
7.5 The Client may be rated along several criteria, as determined by Pricing Prophets.
7.6 Feedback is and will be treated by Pricing Prophets as non-confidential and non-proprietary and it may use such material without restriction, including posting in the Site’s blog, website and social media platforms or discussion forum for others to read.
7.7 The Client must not post or transmit any Feedback which is abusive, deceptive, defamatory, dishonest, harassing, inaccurate, libelous, misleading, obscene, offensive, slanderous, threatening, unlawful, untrue, vulgar, or otherwise reasonably objectionable.
7.8 The Client will not impersonate any other person when posting or responding to Feedback.
7.9 The Client must not post or transmit any unsolicited advertising or promotional material.
7.10 Pricing Prophets may remove Feedback without notice at any time in its sole and absolute discretion.
7.11 Pricing Prophets does not warrant that it or any other User will respond to Feedback.
7.12 Pricing Prophets will not necessarily monitor or censor specific Feedback posted by Users nor investigate any remarks for accuracy or veracity.
7.13 Pricing Prophets does not accept any liability for the accuracy or content of any Feedback or other material posted by Users on the System, blog or social media platforms.
7.14 The Client will be solely responsible and liable for any and all Feedback they submit and the indemnity contained in clause 12 of this Agreement will extend to such Feedback.
7.15 The Client releases Pricing Prophets from any claim, demands, proceedings, losses and damages (actual, special and consequential of every kind and nature including all legal fees) that may arise as a result of any Feedback. Without limiting the foregoing, the User releases Pricing Prophets from any claims for loss of reputation, profits, goodwill or defamation arising out of any Feedback posted to the System.
8 Confidentiality & Privacy
8.1 The identity of Clients will be disclosed to Experts in order for the Experts to complete their Opinion.
8.2 The terms of this Agreement, the relationship of the Parties and any Confidential Information provided by either Party to the other, will at all times remain strictly confidential, except:
8.2.1 to the extent required by law, or
8.2.2 to enforce the terms of this Agreement, or
8.2.3 in the course of seeking professional advice.
8.3 Subject to this Agreement, the provider of confidential information reserves all rights in the confidential information and no rights are granted to the recipient or are to be implied from this Agreement.
8.4 Without limiting any other remedies, the provider of confidential information has the right to specific performance of the obligations under this clause 8 or to obtain an immediate injunction preventing further breach of this clause 8.
8.5 Pricing Prophets respects the privacy of Client’s personal and corporate information and, subject to this Agreement, will:
8.5.1 Not sell, rent, gift or transfer such information to any third party;
8.5.2 Only use such information to fulfill its services and communicate with Clients from time to time, including for the purposes of marketing, billing, delivery of services and account / customer relationship management;
8.5.3 Provide Clients with access to their information and update such information upon request;
8.7 Pricing Prophets will use its reasonable endeavors to ensure the confidentiality of Client’s personal and corporate information. To the maximum extent permitted by law, however, Pricing Prophets accept no responsibility for any loss, misuse, unauthorized access or disclosure, alteration or destruction of personal or corporate information which we collect
8.8 This clause 8 will remain in effect and survive the termination of this Agreement.
9 Pricing Prophets’ Rights
Pricing Prophets reserves the right, with or without notice, to:
9.1 co-operate fully with any law enforcement authority in any jurisdiction in respect of any lawful direction or request to disclose the identity or other information in respect of anyone using the System;
9.2 refuse to disseminate any information and/or materials (in whole or in part) that Pricing Prophets, in its sole and absolute discretion, regards in any way objectionable or in violation of any applicable law or this Agreement;
9.3 alter, enhance, modify the System from time to time;
9.4 temporarily or permanently discontinue or suspend the System at any time;
9.5 publicize by way of general promotion and marketing the fact that Client is or was a client
10 Intellectual Property
10.1 All intellectual property rights, including copyright, trade marks, designs or patents (whether registered or otherwise), in any information, logos, business processes, data and any other materials including all software, tools, know-how, equipment or processes, used in relation to the System and on the Site shall remain Pricing Prophets’ sole and exclusive intellectual property.
10.2 Clients acknowledge and agree that it will not acquire any rights, title or interest in or to any of Pricing Prophets’ intellectual property rights.
10.3 Where Client posts content to the Site, or Feedback, or otherwise provides copyright material for Pricing Prophets to disseminate, it grants Pricing Prophets a royalty free, perpetual, irrevocable licence to reproduce, modify, distribute, display and delete such content (in whole or in part) on the Site, or any other medium or as otherwise deemed appropriate by Pricing Prophets.
10.4 Clients have no right title or interest in the Opinions they receive. Opinions remain the intellectual property of Pricing Prophets or the Experts. Clients are entitled to use the Opinion for their internal business purposes only.
11 Disclaimer and Limitation of Liability
11.1 Pricing Prophets provides the System, Site and Opinions on an ‘as is’ and ‘as notified’ basis without any warranties of any kind, express, implied or statutory as to their accuracy or otherwise.
11.2 Without limiting the foregoing, Clients acknowledge that:
11.2.1 Pricing Prophets does not check the truth or currency of the material or information that Experts provide or make available to it (including any profile information as contained in the Expert Showcase / Profile on the Site);
11.2.2 Pricing Prophets does not control, endorse, approve or warrant to the Client the merchantability or fitness for any particular purpose of any of the goods or services of third parties (including Experts) referred to at the Site;
11.2.3 Pricing Prophets does not warrant to the Client that anything on the Site or any third-party Site referred to or connected via the Site is accurate, complete or up to date and makes no performance warranty whatsoever concerning anything on or implied from them;
11.2.4 Clients agree that specialist bespoke pricing research and advice can only be provided by consulting with professionals for advice that is specifically tailored to their particular circumstances;
11.2.5 Pricing Prophets does not endorse or recommend any Expert or their Opinion or services;
11.2.6 Pricing Prophets does not warrant to the Client that the Site or any information or communication it provides is or will be reliable, timely, error or fault free, complete or accurate;
11.2.7 the Site may experience interruptions and access difficulties from time to time and that Pricing Prophets will not be responsible for such interruptions or access difficulties; and
11.2.8 Pricing Prophets will not be liable for any loss or damage whether directly or indirectly incurred by Clients or any third person as a result of any failure or delay in Pricing Prophets doing any thing, including transmitting any information or removing any information from the System.
11.3 To the fullest extent legally possible, Pricing Prophets excludes any representation or warranty concerning the System or any third party referred to or connected via the System.
11.4 To the extent permitted by law Pricing Prophets excludes all liability to Clients or any other person for any loss, claim or damage (whether arising in contract, negligence, tort, equity or otherwise for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including, without limitation any loss of profits, loss or corruption of data or loss of goodwill) arising out of or in connection with this Agreement and the System.
11.5 To the extent permitted by law, Pricing Prophets and all affiliates and related entities of Pricing Prophets expressly limit their liability for breach of any non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Pricing Prophet’s sole discretion):
11.5.1 in the case of goods, to any one or more of the following:
126.96.36.199 the replacement of the goods or the supply of equivalent goods;
188.8.131.52 the repair of the goods;
184.108.40.206 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
220.127.116.11 the payment of the cost of having the goods repaired; and
11.5.2 in the case of services:
18.104.22.168 the supply of the services again; or
22.214.171.124 the payment of the cost of having the services supplied again.
Client indemnifies and holds Pricing Prophets and its parent, subsidiaries, affiliates, officers, directors, agents, employees, partners, suppliers, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential of every kind and nature, including all legal fees) made by it or any third party due to or arising out of or in any way related to Client’s acts, omissions or use of the System, its Feedback, its negligence, its breach of this Agreement, its breach of any agreement in connection with an Opinion, or its violation of any law or the rights of a third party.
13.1 Pricing Prophets can in its discretion refuse a Client request.
14 Termination and Breach
14.1 Pricing Prophets can in its discretion refuse a Client request if:
14.1.1 Client breaches any terms and conditions of this Agreement;
14.1.2 Pricing Prophets reasonably believes that Client’s acts or omissions may adversely affect the interests of or may result in any loss or liability for Pricing Prophets.
15 Effect of termination or cancellation of Registration
15.1 If this Agreement is terminated or expires and/or the Client’s access to the Site is cancelled or expires for any reason, the Client acknowledges and agrees that:
15.1.1 it must immediately cease and refrain from using the System or Site;
15.1.2 Pricing Prophets will not be liable to Client for any claims of any kind arising as a result of such termination, suspension or cancellation; and
15.1.3 those clauses capable of surviving termination of this Agreement will continue in force.
16 Dispute Resolution
16.1 The procedure set out in this clause must be followed in relation to the resolution of a dispute concerning the interpretation of a term of this Agreement or of the parties’ rights or obligations pursuant to this Agreement (“Dispute”).
16.2 Upon any Dispute arising, a party may give written notice to the other party that a Dispute exists (“Dispute Notice”).
16.3 The Dispute Notice shall provide the recipient with the full particulars of the matters in Dispute.
16.4 The timetable and process for resolving a Dispute pursuant to a Dispute Notice is as follows:
16.4.1 within 5 working days of receipt of a Dispute Notice, the recipient shall hold discussions (either in person or via telecommunications) in good faith in an attempt to resolve the Dispute;
16.4.2 if the Dispute is not resolved within 20 days of the commencement of the meeting referred to in the previous sub-clause or if the meeting referred to in the previous sub-clause has not taken place within the 5 day period, the parties to the Dispute shall refer the matter to mediation;
16.4.3 within 5 working days following the expiry of the relevant period in the previous sub-clause, the parties to the Dispute must attempt to agree on the appointment of a mediator. In the absence of agreement on the appointment of a mediator, a mediator is to be appointed by the President for the time being of the LEADR (www.leadr.com.au), with the costs of the mediation to be borne equally by the parties to the Dispute;
16.4.4 the parties to the Dispute will use their best endeavors to ensure the mediation takes place within 30 days of a mediator being appointed; and
16.4.5 any mediation that takes place pursuant to the operation of this clause is to take place in Melbourne, Australia.
16.5 Except for the purpose of obtaining urgent interlocutory or declaratory relief from a court of competent jurisdiction, no party will commence any proceedings in any court, tribunals or otherwise without first providing a Dispute Notice and complying with the dispute resolution process set out in this clause.
16.6 The mediation procedure is confidential and any written statements prepared for the mediator or for a party and any discussion between the parties and between the parties and the mediator before or during the mediation procedure, are made on a “without prejudice” basis and cannot be used in any legal proceedings.
17.1 Clients may not assign any of its rights or obligations under this Agreement without Pricing Prophets’ prior written consent.
17.2 If Client is a company, any change in its effective control shall be deemed an assignment for the purpose of this clause.
17.3 Pricing Prophets may assign its rights or obligations under this Agreement at any time without notice to the Client.
18.1 Force majeure: Pricing Prophets will not be liable for any failure or delay in the performance of its obligations to a Client if that failure or delay is due to circumstances beyond its reasonable control including, without limitation, any act of God, tempest, climatic or environmental conditions, flood, fire, earthquake, any mechanical, electronic, communications or third party supplier failure, industrial action, breakdown of plant or infrastructure, accident, explosion, war, revolution, civil commotion, act of a public enemy, act of terrorism, blockage, embargo, injunction, law, order, proclamation, regulation, ordinance, demand or other requirement of any government entity.
18.2 Severability: The provisions of this Agreement are severable, and if any provision of this Agreement is held to be illegal, invalid or unenforceable, under present or future law, such provision may be removed and the remaining provisions shall be enforced.
18.3 No Waiver: Pricing Prophets’ failure to act with respect to a breach by Expert or others does not waive its right to act with respect to subsequent or similar breaches.
18.4 Entire Agreement: This Agreement and those incorporated herein set forth the entire understanding and agreement between the parties with respect to the subject matter hereof.
18.5 Notices: Pricing Prophets may provide notices to you by simply posting the notice on the Site. This is in addition to any other mode of service permitted by law including email, post, fax.
18.6 Variation: Pricing Prophets may vary the terms and conditions of this Agreement by providing written notice of the changes to the Client, which variation will be effective from the service of a notice to this effect on the Client.
18.7 Governing Law: This Agreement shall be governed in all respects by the laws of the State of Victoria, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and to the Federal Court of Australia sitting in Victoria.