1. AGREEMENT FORMATION
The Agreement will become legally binding on the parties when:
- Client acknowledges acceptance of the agreement electronically via the Survey Dynamix web interface; and
- Provider begins to provide the Services.
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.
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:
- Provision of training services to Client
- Integration of the Software with third party systems such as Genesys PureCloud
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:
- all of the information that it provides to Provider is accurate and complete in all respects; and
- it will inform Provider whenever any such information changes.
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 3 days notice, to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates. In the event of unforeseen circumstances, urgent system remediation may require an interruption to services where this notice period can not be honoured.
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:
- web servers, storage and email delivery, which is hosted by Amazon Web Services (AWS)
- voice and SMS services, which are provided by Twilio
- voice recording transcription which is provided by Google Cloud Speech API
15. PHONE NUMBER REGULATORY REQUIREMENTS
Local country regulations must be adhered to when using phone numbers. This requirement means in some cases you must provide adequate identity documentation to the carriers or local regulator. Failure to provide that information creates a risk of disruption of service. For more detailed information about phone number regulatory requirements, please refer to https://www.twilio.com/docs/phone-numbers/regulatory/phone-numbers-regulatory-requirements-customers
- This information will have to be provided to Survey Dynamix and we will handle it on your behalf.
- You can learn more about phone number regulations by visiting https://www.twilio.com/docs/phone-numbers/regulatory/faq and be kept up-to-date on changes to local requirements via phone number regulatory changelog – https://www.twilio.com/docs/phone-numbers/regulatory/changelog.
16. 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.
17. ADDITIONAL WORK
- If Client requires support and maintenance outside the scope of the Agreement, Provider may charge Client for it under a separate agreement.
- If Provider determines at its sole and absolute discretion that the requirement for any work outside the scope of the Services is caused by the fault or error of Provider, Client shall not pay for that additional work.
Client should engage Provider directly or through a reseller partner depending on the commercial agreement in place.
18. 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.
19. 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.
20. 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.
21. 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:
- charge Client interest on the overdue amount at 5% above the Reserve Bank of Australia cash rate;
- suspend Client’s use of any or all of the Services;
- terminate the Agreement without any obligation to refund Client any money in respect of the cancellation, even if the contractual term of the Agreement has not expired;
- initiate proceedings against Client to recover the overdue amount (despite any dispute resolution clause in the Agreement); and
- recover all costs in relation to any action taken against Client to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
22. AUTHORISED USERS
- Client may designate Authorised Users in accordance with the mechanism at https://surveydynamix.com/users.
- Client warrants that all of the information provided to create an Authorised Account (whether that information is provided by an Authorised User or Client) is accurate and complete in all respects, and will update Provider whenever any of this information changes.
- Client is responsible for ensuring that Authorised Users comply with the Agreement to the fullest extent the Agreement applies to the use of Authorised Accounts.
23. CLIENT UNDERTAKINGS IN RELATION TO SERVICES
- to use the Software only as it was designed to be used;
- not to use the Software in any way which could interfere with or damage Provider’s network, any other operator’s network, or another Client’s enjoyment of the Software;
- not to use the Software for unsolicited or unreasonably frequent or voluminous communications;
- not to publish or otherwise communicate any review of, or information about, the Services to any third party without the prior written consent of Provider, except as specifically provided for in an agreement with Provider;
- not to disable or circumvent any protection or disabling mechanism related to the Services;
- not to install or store any software applications, code or scripts on or through the Services unless it first obtains the written permission of Provider;
- not to use the Services to bully, harass, degrade, insult or otherwise demean any person (as determined by Provider) or to partake in offensive or indecent conduct; and
- not to store, access or operate any data, code or software on, or in connection with, the Software that could be categorised or identified as:
- a computer virus or malicious code;
- pornographic material; or
- “warez” or associated with “warez”.
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.
24. CLIENT WILL USE SERVICES IN ACCORDANCE WITH THE LAW
- to ensure that all electronic communications sent through or in connection with the Software feature an unsubscribe facility, and that they comply with the requirements of the SPAM Act 2003 (Cth) (or other such applicable foreign law) when sending electronic communications through the Software; and
- not to store or access any Data on the Services if such access or storage would:
- breach any Intellectual Property Right;
- breach of the Privacy Act 1988 (Cth) or if the Client process data about EU residents, the General Data Protection Regulation (GDPR); or
- breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).
- to obtain consent from any individual whom it collects Personal Information from through the Services.
- to notify Provider if an individual requests Client to remove that individual’s Personal Information from the Services or Software.
25. PROVIDER RIGHT TO SUSPEND
Provider reserves the right to:
- limit or suspend Client’s access to the Services; and
- remove data or content uploaded to the Services by Client,
if Client breaches any of its obligations or undertakings in the Agreement.
- remove Personal Information from the Services or Software about an individual if requested by that individual.
26. TECHNICAL INFORMATION
- All Technical Information is for informational purposes only, and is to be used or relied on at Client’s own risk.
- Provider makes no warranty or representations as to the accuracy of the Technical Information.
- There may be technical or administrative errors in the Technical Information.
- Provider reserves the right to correct any errors in the Technical Information and on the Software interface without any notice to Client.
27. 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.
28. 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.
29. CLIENT SECURITY RESPONSIBILITIES
Client is solely responsible for:
- keeping any usernames and passwords associated with its account for the Services secure; and
- the use of its account, irrespective of who is using it, even if it is used without Client’s permission.
30. DATA STORAGE WITH THIRD PARTY
- Provider may subcontract the storage of the Data (except Personal Information) to a third party (or multiple third parties) without notification to or consent from Client.
- When Data is Personal Information, Provider may subcontract the storage of that Data to a third party (or multiple third parties) without consent from Client but will notify Client of such subcontracting arrangement.
- Provider makes no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any backups in connection with the Services.
- Client acknowledges that Provider has recommended Client take reasonable steps to back up its Data separately from the Services.
- Provider will put in place and manage backup procedures to backup the Data including backing up all client data twice daily until the end of the Agreement. Backups are retained on a 2 week rolling period.
32. DATA MANAGEMENT AFTER TERMINATION
- Provider will delete any Data 3 months after the Agreement is terminated (Retention Period).
- Client may obtain the Data within the Retention Period if it bears the costs of the hardware and incidental costs reasonably required by Provider to effect a transfer of the Data to Client (Return Costs).
- Provider will not be obliged to return Data to Client until Client has paid the Return Costs in advance to Provider, as well as any outstanding payments owed to Provider.
- A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
- A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
- Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
- Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
35. 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:
- subject to Clause 30, to permit third party service providers to perform their services in connection with Provider’s business;
- to interact with Provider’s related bodies corporate;
- to effect a sale (or proposed sale) of all or part of Provider’s business;
- to satisfy any contractual obligation that Provider has to any third party;
- where Client has overdue fees, to debt collection agencies or its legal advisers to recover the amount due;
- for Provider to ensure that Client is not in breach of the Agreement; and
- as required or permitted by any law that Provider and its related bodies corporate may be subject to.
36. 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.
37. 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:
- any applicable privacy legislation or code; or
- any guidance issued by the Office of the Australian Information Commissioner,
and will immediately notify Client of any such change.
38. CLIENT’S NOTIFICATION OBLIGATIONS
39. OWNERSHIP OF DATA
Client shall at all times during the course of the Agreement be the exclusive owner of the Data.
40. LICENSE OVER DATA
- Client grants Provider a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licenseable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add to, process, analyse and use the Data for providing the Services.
- Notwithstanding the above, when Data is Personal Information, the rights associated with that Data can be terminated at the request of the individual.
41. 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.
42. 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.
43. 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:
- copy or reproduce, or create an adaptation or translation of, all or part of the Product IP in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Services in accordance with the Agreement;
- incorporate all or part of the Product IP in any other webpage, site, application or other digital or non-digital format;
- (subject to other rights explicitly granted under the Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Services on any medium; or
- directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Services or any documentation associated with them.
44. EXCLUSION OF EXPRESS WARRANTIES
Provider makes no warranties or guarantees:
- that the Services will be accessible at all times, uninterrupted or error free;
- that any of the Software is without bugs or viruses;
- that any of the Technical Information is without error or inaccuracy;
- that the Services are immune to unauthorised access or security breach; and
- in respect of the retention of, or continued accessibility of, any Data.
45. 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.
46. 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.
47. 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 Services being inaccessible to Client for any reason;
- incorrect or corrupt data, lost data, or any data inputs or outputs of the Services;
- computer virus, trojan and other malware in connection with the Services;
- any breach of security that results in unauthorised access to or corruption of data;
- any unauthorised activity by any third party in relation to the Services;
- failure of any third party component including, without limitation, hardware failure, network failure, or power failure;
- failure of any third party software including, without limitation, the operating system and any other software;
- any personal injury or death arising directly or indirectly from the provision of the Services by Provider;
- Client’s use of or reliance on the Services for a purpose other than the business purposes of Client or the reasonably expected purpose of the Services;
- the use of or reliance on the Services by persons other than Client or authorised users of the Services;
- Client or any authorised user’s infringement of any third party Intellectual Property Rights by use of the Services;
- Client’s use of or reliance on the Services where the Services have not been updated to the most recent version of the Services with all updates, upgrades, fixes and other improvements as released by Client as of that date;
- failure of Client to maintain hardware sufficient to meet minimum hardware requirements for the Services;
- any breach of the Agreement by Client including breach of Client’s undertakings;
- any loss or damage to property arising directly or indirectly from the use of the Services;
- Provider’s breach of the Agreement; or
- any act or omission of Provider.
The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by Provider’s negligence), or under statute.
48. 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:
- in the case of goods:
- the re-supply of the goods or payment of the cost of the re-supply of the goods; or
- the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
- in the case of services:
- the re-supply of the services affected by the breach; or
- the payment of the cost of such re-supply of the services.
49. 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.
50. 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:
- Client’s breach of the Agreement;
- Client or any authorised user’s infringement of any third party Intellectual Property Rights while using the Services;
- Client’s failure to fulfil any of its obligations in the “Privacy” clause of the Agreement;
- Client’s breach of the Privacy Act 1988 (Cth) or if the Client proces data about EU residents, the General Data Protection Regulation (GDPR);
- a breach of the SPAM Act 2003 (Cth);
- any harm to or claim by a third party arising directly or indirectly from Client’s use of the Services;
- any negligent or unlawful act or omission by Client in connection with the Services;
- Provider’s or a third party’s reliance on a misleading representation made by a Client;
- a contract in force between Client and a third party connected with the Services;
- Provider’s enforcement of its rights in connection with the Agreement, including legal costs on a full indemnity basis;
- Client storing Data on the Service.
51. CONDITIONS OF INDEMNITY
- The Indemnified may make a claim under indemnities in the Agreement in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.
- The indemnities in the Agreement shall be in addition to any damages for breach of contract to which Provider may be entitled. Nothing in the indemnities in the Agreement will be construed so as to prevent Provider from claiming damages in relation to Client’s breach of any term of the Agreement.
52. PROVIDER TERMINATION FOR CONVENIENCE
- Provider reserves the right to withdraw from or cancel the Agreement at any time without giving reasons, by providing Client notice in writing no less than 2 weeks before the cancellation is to take effect.
- If Provider exercises its right to terminate without giving reasons in accordance with the Agreement, Client will receive a pro-rated refund of money paid for the remainder of the Agreement.
53. TERMINATION ON INSOLVENCY
Either party may immediately terminate the Agreement by notice to the other party if the other party suffers an Insolvency Event.
54. 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.
55. DISPUTE RESOLUTION PROCEDURE
Initiation of Dispute
If there is a Dispute, then either party may notify the other with a Resolution Notice, which:
- includes, or is accompanied by, full and detailed particulars of the Dispute; and
- is delivered within 14 days of the circumstances giving rise to the Dispute first occurring.
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.
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.
56. 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.
57. UNFORESEEN EVENTS
- The obligations of Provider under the Agreement are suspended to the extent that an Unforeseen Event affects them, as long as the Unforeseen Event continues. The occurrence of an Unforeseen Event does not suspend the obligation of Client to pay any money under the Agreement.
- A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.
- If an Unforeseen Event continues for more than 60 days, Provider may terminate any agreement in force for the provision of the Services by notice in writing to Client of not less than 14 days.
- Communications must be in writing.
- Either party may serve any Communication on the other party by sending it to that party’s email address. A Communication by email will be taken to have been received by the addressee 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email was not delivered to the addressee’s domain specified in the email address.
59. ENTIRE AGREEMENT
The Agreement represents the entire agreement between Provider and Client in relation to the Services.
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.
61. DUTIES AND TAXES
Client will pay all stamp duties and any related taxes, fines and penalties in respect of the Agreement and the Services.
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.
63. ASSIGNMENT AND NOVATION
- Client cannot assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of Provider.
- Provider may assign, novate or otherwise transfer any of its rights or obligations under any Agreement to a third party without notice to, or the prior consent of, Client, but if Provider requires, Client will sign any documents to give effect to an assignment, novation or transfer by Provider under this clause.
64. 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.
65. 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.
The Agreement may be executed with any number of counterparts and by the parties on separate counterparts.
67. 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.
No right of Provider will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
69. RELATIONSHIP OF PARTIES
The relationship between Provider and Client under any Agreement does not form a joint venture or partnership.
In this document, headings are for convenience only and do not affect the interpretation. Unless the context indicates a contrary intention:
- a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- an obligation or liability assumed by, or a right conferred on 2 or more parties binds or benefits all of them jointly and each of them severally;
- a reference to a statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
- a reference to any document (including this document) is to that document as varied, novated, ratified or replaced from time to time;
- words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
- a reference to “$” or “dollar” is to United States currency; and
- the word “includes” in any form is not a word of limitation.
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
- an employee, agent or contractor of Client; or
- any other third party,
authorised by Client to use an Authorised Account.
means any written communication including each notice, consent, approval, request and demand under or in connection with the Agreement.
means information that is by its nature confidential, including but not limited to information relating to the:
- personnel, policies, practices, clientele or business strategies of the parties;
- Intellectual Property Rights of either party; and
- the terms of the Agreement,
but does not include information:
- already rightfully known to the receiving party at the time of disclosure by the other party; or
- in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
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.
means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
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.
means any dispute arising between Client and Provider in connection with the Agreement.
means Provider and its directors, employees, contractors and agents.
means in respect of a party:
- the appointment of an administrator, a receiver or receiver and manager in respect of that party;
- an application to a court or an order for the winding up of the party; or
- the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
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.
has the meaning given to that term in the Privacy Act 1988 (Cth).
means all Intellectual Property Rights subsisting in:
- the Software or any part of it; or
- any additions or alterations made to the Software, including those made with the input of Client.
means a notice of Dispute served by a party in relation to the Agreement.
- the Software;
- any support and maintenance in respect of the Software;
- any installation services provided; and
- any other service rendered by Provider to Client within the scope of the Agreement.
- the software application found at the URL https://surveydynamix.com and all of its subdomains, derived URLs and associated URLs; and
- electronic infrastructure and configuration used to provide the Services.
means information used, provided and created by the Software, including:
- performance analytics; and
- comparative analytics..
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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