Survey Dynamix Terms of Use Agreement

1. Agreement formation

The Agreement will become legally binding on the parties when:

2. Term of the agreement

Provider will provide the Services to Client based on the agreed terms of the commercial agreement.

Once on-going terms are agreed, the Agreement automatically renews for each rolling term unless terminated in accordance with the Agreement, or Client provides written notice of permanent cancellation of the Agreement to Provider more than 7 days before the end of the term. Cancellation will take effect at the end of the term in which Client gave notice of cancellation.

3. When amendments take effect

Provider may update the Agreement, including the fees, at its discretion by providing written notice to Client before the end of any rolling term. The updates will take effect in the following term. Where Client does not accept such changes it must immediately notify Provider. Such notice of non-acceptance will cancel the automatic renewal of the Agreement, and the Agreement will cease at the end of the term in which Provider gave notice of the changes.

4. Licence

Provider grants to Client a non-transferrable, non-exclusive and revocable licence to access the Services, subject to the terms of the Agreement.

5. Responsibilities for setup and installation

Client will be responsible for all aspects of setting up the Services except for any inclusions outlined in the commercial agreement such as:

6. Provision of information by Client

Client will provide any information reasonably requested by Provider for the purpose of setting up and operating the Services for Client. Client warrants that:

7. Training services from Provider

If Client requires training services (in addition to those agreed and included in the commercial agreement), Provider may charge for those training services under a separate agreement.

8. Services not locally available

Client agrees and accepts that the Software is hosted by Provider and will only be accessible using the Internet (or other connection to Provider’s servers), and will not be available “locally” from Client’s own servers.

9. Services arrive in parts

Provider may at its sole and absolute discretion provide and charge for the Software in various modules, packages and combinations from which Client may choose.

10. Provider can change services at discretion

Provider reserves the right to upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Services at its sole and absolute discretion.

11. Client has no back end access

Client agrees that the Services are managed and supported exclusively by Provider and that no “back-end” access to the Software is available to Client unless expressly agreed in writing between the parties.

12. Unintentional inaccessibility

From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, Provider will use its reasonable endeavours to restore access to the Services as soon as practicable.

13. Intentional inaccessibility

Provider reserves the right, with 5 days notice, to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates.

14. Parts of the services controlled by third parties

Client agrees and accepts that the Services are operated from servers owned and controlled by a third party. As such, Client acknowledges that certain functions are out of the control of Provider, including:

15. Delivery of support and maintenance

Provider will provide support and maintenance in respect of the Services via email and telephone only, as determined at the sole and absolute discretion of Provider.

16. Additional work

Client should engage Provider directly or through a reseller partner depending on the commercial agreement in place.

17. Calculation of fees for the services

Client will pay Provider directly or indirectly (through a third party) for the Services. Fees payable are managed in a separate commercial agreement between Client and Provider or Client and a partner/reseller of Provider.

18. Timing for payment of the fees

Fees are payable when they are due, based on the commercial agreement in place between Client and Provider or between Client and a partner/reseller of Provider.

19. Fees exclusive of GST

All fees quoted for the Services by Provider are exclusive of GST unless expressly stated otherwise. Client will be responsible for paying any taxes or duties, including GST, that apply to the provision of the Services.

20. Failure to pay

If Client fails to pay Provider any amount under the Agreement on the due date for payment, Provider may immediately do any or all of the following, without any liability, until all overdue fees are paid:

21. Authorised users

22. Client undertakings in relation to services

Client undertakes:

Client will be responsible for the breach of any undertaking or warranty in this clause regardless of whether that breach is caused by a security breach of any kind.

23. Client will use services in accordance with the law

Client undertakes:

24. Provider right to suspend

Provider reserves the right to:

if Client breaches any of its obligations or undertakings in the Agreement.

25. Technical information

26. Third party content

The inclusion of any third party link does not imply any endorsement or recommendation of a linked website by Provider. Provider will not be responsible for any third party advertising content displayed on the interface of the Software. Any link on the Software to a third party website, or decision to accept any third party offer, is entirely at Client’s own risk.

27. Provider security responsibilities

Provider will take reasonable steps to ensure that the Software is secure from unauthorised access consistent with generally accepted industry standards in Provider’s industry.

28. Client security responsibilities

Client is solely responsible for:

29. Data storage with third party

30. Backup

31. Data management after termination

32. Confidentiality

33. Privacy policy

Client agrees and consents to Provider’s use of Personal Information in accordance with Provider’s Privacy Policy, available at https://surveydynamix.com/privacy_policy.

34. Data disclosure

Provider may access, review or copy on its own account, or disclose and transfer to any third party, any Data or Personal Information, to the extent required:

35. No privacy warranty

Provider makes no warranty as to whether Client’s use of the Services will comply with Client’s obligations under any applicable privacy law. It is Client’s responsibility to determine whether the Services are appropriate for Client’s circumstances.

36. Changes in response to privacy law

Provider may make any changes to the Services that it considers, at its sole and absolute discretion, to be beneficial for compliance with:

and will immediately notify Client of any such change.

37. Client’s notification obligations

Client undertakes that when it stores any Personal Information on the Services, it will notify the relevant individuals that such information may be accessible by Provider and is handled in accordance with Provider's privacy policy.

38. Ownership of data

Client shall at all times during the course of the Agreement be the exclusive owner of the Data.

39. License over data

40. Provider intellectual property

Provider owns the Product IP, and in any circumstances where it does not automatically have such ownership, Client will transfer it to Provider and will do all things necessary to ensure that full legal ownership of the Product IP passes to Provider.

41. Licence to intellectual property in services

Provider grants to Client a non-exclusive royalty-free licence to use the Product IP for the sole purposes of accessing and using the Software in accordance with the Agreement. This licence will automatically terminate when the Agreement terminates.

42. Undertakings regarding intellectual property

Client warrants that it will not do any of the following, or permit any person over whom it has effective control to do so:

43. Exclusion of express warranties

Provider makes no warranties or guarantees:

44. Limitations, exclusions and indemnities subject to the law

All limitations, exclusions and indemnities in the Agreement are subject to Non Excludable Conditions to the extent of any inconsistency, and apply to the fullest extent permissible by the law.

45. Exclusion of implied conditions

To the fullest extent available under the law, Provider excludes all implied guarantees, conditions and warranties from the Agreement and the Services, except any Non Excludable Condition.

46. Limitation of liability

Provider excludes all other liability to Client for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by Client in connection with the Agreement or the Services, except to the extent that the loss (excluding Consequential Loss) is caused by the negligent act of the Provider including in connection with:

The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by Provider’s negligence), or under statute.

47. Operation of compulsory conditions

Where a Non Excludable Condition is deemed to apply, to the fullest extent possible under the law, Provider limits its liability for any breach to:

48. General indemnity

Client indemnifies the Indemnified against all Costs suffered or incurred by the Indemnified, however caused, arising wholly or partially, directly or indirectly, in connection with the Agreement or Client’s use of the Services.

49. Specific indemnities

Without limiting the generality of the “General indemnity” in the Agreement, the Client indemnifies the Indemnified against any Costs arising directly or indirectly from:

50. Conditions of indemnity

51. Provider termination for convenience

52. Termination on insolvency

Either party may immediately terminate the Agreement by notice to the other party if the other party suffers an Insolvency Event.

53. Termination for breach

If Client breaches any provision of the Agreement, Provider may give Client a written notice requiring them to remedy the breach. If Client does not remedy the breach within 14 days of receiving such a notice, the other party may terminate the Agreement.

If Provider exercises its right to terminate for unremedied breach by Client in accordance with the Agreement, Provider will not be obliged to refund any money to Client.

54. Dispute resolution procedure

Initiation of Dispute

If there is a Dispute, then either party may notify the other with a Resolution Notice, which:

Meeting to resolve Dispute

Within 14 days after a Resolution Notice is given, a representative (with the authority to resolve the dispute) of Client and Provider must meet and seek to resolve the Dispute.

Mediation

If the representatives of Client and Provider do not resolve the Dispute within 30 days, the Dispute will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.

Mediation to final and binding arbitration

If the Dispute is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to final and binding arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations.

Costs for mediation / arbitration process

When the Dispute is submitted to mediation or arbitration, each party will pay its own Costs for the proceedings. The parties will share equally the Costs payable to The Institute of Arbitrators & Mediators Australia.

Court proceedings not to be brought before process

Subject to this section, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

Parties can seek urgent injunctive relief

Nothing in the Agreement prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

Obligations and rights remain current during dispute

Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement and any other agreement between the parties.

Dispute resolution provisions subject to non-excludable conditions

The obligations set out in the Agreement in relation to dispute resolution are available to the fullest extent available under the law, and subject to the Non Excludable Conditions to the extent of any inconsistency.

55. Dispute resolution procedure not to apply to debt enforcement

The dispute resolution procedure set out in this clause will not apply in any instance where Provider seeks to enforce a debt in connection with the Agreement.

56. Unforeseen events

57. Communications

58. Entire agreement

The Agreement represents the entire agreement between Provider and Client in relation to the Services.

59. Reliance

Neither party has entered into the Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other unless it is set out in the Agreement.

60. Duties and taxes

Client will pay all stamp duties and any related taxes, fines and penalties in respect of the Agreement and the Services.

61. Variation

The Agreement cannot be varied, except by the written agreement of the parties. No purchase order or other document issued by Client will vary any Agreement, or be considered when considering the terms of agreement between Provider and Client.

62. Assignment and novation

63. Multiple parties as Client

If more than one party contracts with Provider under the Agreement as Client, the term Client refers to each of them, and the obligations of Client under the Agreement bind them, jointly and severally, and any obligation or a liability assumed by more than one Client binds them jointly and severally.

64. Electronic execution

The parties agree that acknowledgement by the Client through the web interface, when prompted, means that both parties have entered into this Agreement.

65. Counterparts

The Agreement may be executed with any number of counterparts and by the parties on separate counterparts.

66. Governing law

The laws of the state of Queensland Australia govern the Agreement and each party submits to the non-exclusive jurisdiction of the courts in that jurisdiction.

67. Waiver

No right of Provider will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

68. Relationship of parties

The relationship between Provider and Client under any Agreement does not form a joint venture or partnership.

69. Interpretation

In this document, headings are for convenience only and do not affect the interpretation. Unless the context indicates a contrary intention:

Definitions

Agreement

means the legally binding contract arising between the parties under this document.

Authorised Account, Authorised Accounts

means a sub-account, under the auspices of Client’s overall account with Provider, which is operable by an employee, agent or contractor of Client.

Authorised User, Authorised Users

means

authorised by Client to use an Authorised Account.

Communication, Communications

means any written communication including each notice, consent, approval, request and demand under or in connection with the Agreement.

Confidential Information

means information that is by its nature confidential, including but not limited to information relating to the:

but does not include information:

Consequential Loss

means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Cost, Costs

means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.

Data

means any data uploaded by Client or any user associated with Client to the Software or any other electronic servers and infrastructure used to provide the Services.

Dispute

means any dispute arising between Client and Provider in connection with the Agreement.

Indemnified

means Provider and its directors, employees, contractors and agents.

Insolvency Event

means in respect of a party:

Intellectual Property Right, Intellectual Property Rights

means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Non Excludable Condition, Non Excludable Conditions

means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Personal Information

has the meaning given to that term in the Privacy Act 1988 (Cth).

Product IP

means all Intellectual Property Rights subsisting in:

Resolution Notice

means a notice of Dispute served by a party in relation to the Agreement.

Services

means:

Software

means:

Technical Information

means information used, provided and created by the Software, including:

Unforeseen Event

means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government provider, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code.

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