The Customer Science Insights Platform referred to as the CSI platform and its associated applications and related services, websites and tools (together the Platform) is owned and operated by Customer Science Pty Ltd ABN 16 600 741 197 (Provider). This End User Licence Agreement (Agreement) governs access to and use of the Platform by you, the individual using the Platform, and any legal entity on whose behalf you are acting (being your Employer). By using or accessing the Platform, you indicate your assent to be bound by this Agreement and the Software Licensing Agreement entered into by us and your Employer. The Provider may update this Agreement from time to time, and your continued use of the Platform constitutes acceptance by you of any updates.
1. Definitions
In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: an account established on the Platform which enables you to access and use various features on the Platform.
(b) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Applicable Law: any laws governing or affecting the arrangements contemplated by this Agreement.
(d) Data: all data, files, works and materials pushed or pulled into the Services by you, transmitted to the Services at your instigation, or supplied by you to the Provider for uploading to, transmission by or storage on the Services.
(e) Employer: the organisation to which you are commercially engaged, and has signed the Software Licensing Agreement and is responsible for the identification and management of authorised users on the Platform you are accessing.
(f) Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
(g) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(h) Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to you by the Provider at any time. Including any softcopy user manuals and online help issued by the Provider from time to time.
(i) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(j) Platform: the platform managed by the Provider as described above.
(k) Services: the provision of the Platform and any ancillary services provided by the Provider which are not the subject of another agreement between you and the Provider.
(l) you: means the person or entity that accesses the Platform and ‘your’ shall be interpreted accordingly.
2. Interpretation
In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
(b) Words denoting the singular include the plural and words denoting the plural include the singular.
(c) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
(d) A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(e) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
(f) Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(g) A reference to writing or written includes email.
(h) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
3. Licence
(a) Your use of this Platform is pursuant to a limited, non-exclusive, non-sublicensable, revocable, non-transferable, licence granted by the Provider strictly in accordance with this Agreement & our Terms and Conditions. You acknowledge and agree with the Provider that you will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation Intellectual Property Rights) in the Platform other than the non-exclusive rights granted in accordance with this Agreement and our Terms and Conditions..
(b) The Platform is available only to, and may only be used by, individuals who can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use the Platform.
(c) In order to use this Platform, you require the equipment and connections necessary to access the World Wide Web. Without limitation, you are responsible for:
(i) the provision of any such connection or access to the World Wide Web;
(ii) the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and
(iii) the provision of all equipment necessary for you to make any such connection to the World Wide Web.
4. Account
In order to use the Platform you will need to create an Account. In creating and using your Account:
(a) you comply with all required permissions and clearances from your Employer to access and use the Platform commensurate with your current permission level;
(b) you must not use false or misleading information and you must update your details should they have changed from the last time you used the Platform. The Provider is not responsible for any Loss (including misdirected notifications) which may occur because you have not provided the Provider with up to date, accurate or complete information;
(c) you may be required to choose a username and password. You are responsible for the security of your login information and the Provider will assume that anyone using your Account is authorised to do so by you and you are responsible for their actions. Under no circumstances will unauthorised access and use of your Account reduce your liability to the Provider; and
(d) you must notify the Provider immediately if you become aware of any unauthorised use of your Account or other security breach.
5. System Integrity & User Conduct
(a) You must not use the Platform to:
(i) impersonate or otherwise misrepresent your identity or affiliation with any other person or entity;
(ii) input, upload, post, disclose or transmit any material that is defamatory, obscene, indecent, lewd, violent, abusive, insulting, threatening, harassing, fraudulent or misleading or deceptive;
(iii) input, upload, post, disclose or transmit any material which is subject to Intellectual Property Rights of the Provider or any third party or breaches any duty of confidence or contractual obligation owed to the Provider or any third party;
(iv) interfere with, damage, disable, overburden, impair or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform; or
(v) attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means.
(b) You acknowledge and agree that your use of the Platform must not:
(i) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(ii) be in any manner to phish or deceptively obtain information of Authorised Users;
(iii) be in a manner that is for any harmful, irresponsible, or inappropriate purpose, or in breach of this Agreement or any terms and conditions of any third-party product or service;
(iv) infringe any third-party’s rights or violate any Applicable Laws;
(v) create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers; or
(vi) damage the credibility or integrity of the Platform or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way.
(c) You acknowledge and agree that you must not:
(i) directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, licence, sublicence, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Services (except to the extent expressly permitted by the Provider or authorised within the Platform);
(ii) create derivative works based on the Platform (except to the extent expressly permitted by Provider or authorised within the Platform);
(iii) use the Platform for any
(iv) purpose other than the purpose for which it was designed and intended;
(v) commit or permit any act which may interfere with the use of the Platform by any other user;
(vi) breach or violate any of the Provider’s policies;
(vii) create liability for the Provider;
(viii) damage the credibility or integrity of the Platform or the Provider;
(ix) copy, store or otherwise access any information contained in the platform for purposes not expressly permitted in this Agreement;
(x) tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof; or
(xi) damage, modify, alter, adapt or amend the Platform or any content within the Platform or any part thereof in any way;
(xii) access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services;
(xiii) probe, scan, or test the vulnerability of any system or network;
(xiv) breach or violate any of the Provider’s policies;
(xv) circumvent storage space limits;
(xvi) falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Platform;
(xvii) copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by this Agreement;
(xviii) use the Platform for any purposes that are not permitted by this Agreement or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;
(xix) interfere with or disrupt any user, host, or network, for example by sending a virus to, overloading, flooding, spamming, or mail-bombing any part of the Services;
(xx) use any robot, spider, scraper, or other automated means to access or monitor the Service for any purpose;
(xxi) access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, by “scraping” or creating accounts in bulk);
(xxii) take any action that imposes or may impose (at the Provider’s sole discretion) an unreasonable or disproportionately large load on the Provider’s infrastructure or infrastructure which supports the Service;
(xxiii) attempt to circumvent payment of any fees in anyway;
(xxiv) use the Service to develop a competing service or product;
(xxv) damage or modify the Platform or the Platform or any part thereof; or
(xxvi) breach, circumvent, disable or otherwise attempt to interfere with any security or authentication related features.
6. Third party integration
(a) This Platform may require third party integrations (Third Party Programs). Those Third Party Programs are not under the control of the Provider and the Provider is not responsible for the content, availability, functionality and defects of the Third Party Programs or any webcasting or other transmission received from any such Third Party Programs.
(b) Neither the Provider nor its Personnel recommend or endorse the content of any Third Party Programs which may be linked to or from the Platform or services of any third party organisations mentioned or described on this Platform. You acknowledge that you use any Third Party Programs at your own risk.
(c)
7. Intellectual Property Rights
(a) The Provider shall at all times retain all title, rights and interest in and to the Platform and Materials, including:
(i) the Intellectual Property Rights subsisting in each;
(ii) any customisations of, and modifications to, the Platform and Materials;
(iii) information or data, object or source codes, renderings, flowcharts, databases and other information technology relating to or connected with the Services or Materials;
(iv) marketing information relating to or connected with the Platform or Materials; and
(v) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Platform,
however the Provider does not own the User Data.
(b) All company names and logos contained within the Platform are the trade marks, service marks or trading names of their respective owners, including the Provider.
(c) You acknowledge and agree that no right, title or interest in any of the Intellectual Property Rights in the Platform is transferred or granted to you, other than the rights granted expressly by this Agreement.
(d) You must not infringe, reduce the value of or otherwise damage the Intellectual Property Rights of the Provider.
(e) You hereby grant to the Provider an irrevocable, royalty free, worldwide, perpetual, transferable, non-exclusive license to use, process, access, modify, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Data to the extent reasonably required:
(i) to provide the Services;
(ii) to enable you to share the Data or interact with other people or distribute and display the Data;
(iii) for the performance of the Provider’s obligations; and
(iv) the exercise of the Provider’s rights under this Agreement,
together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.
(f) You warrant that:
(i) you own or have the necessary rights, releases, permissions and licences to transmit such Data through the Platform and for the Provider to use such Data in accordance with this Agreement;
(ii) any Data provided will not infringe any third-party rights (including Intellectual Property Rights or confidentiality rights) nor give rise to a liability to make royalty or other payments to a third party;
(iii) the upload of the Data to the Platform and use of the Data will not:
i) breach the provisions of any law, statute or regulation;
ii) infringe the Intellectual Property Rights or other legal rights of any person; or
iii) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any Applicable Law.
8. Information Provided and Privacy
The Data will be used in accordance with this Agreement, the Provider’s Privacy Policy and the terms the Provider has with the relevant licensor of whom you have been provided access to the Platform through.
9. Warranties
(a) The Provider does not warrant that:
(i) the Platform will provide any function for which it is not specifically designed;
(ii) the Platform will provide any minimum level of performance; or
(iii) the Platform will be virus free or free of performance anomalies or be operational without interruption.
(b) You warrant to the Provider that at the time of entering the Platform, you were not relying on any representation made by the Provider.
(c) Except as expressly provided to the contrary, and to the extent permitted by law, the Provider makes no representations or warranties of any kind, express or implied as to the operation of your access to or the results of your access to the Platform (including any related or linked websites) or the correctness, accuracy, timeliness, or completeness or reliability of the Materials included within the Platform.
(a) Without limiting the other terms of this Agreement, you acknowledge and agree that:
(i) the Provider does not guarantee continuous, uninterrupted or secure access to its Platform or that any information provided by the Provider is up to date and accurate;
(ii) the Provider does not warrant that the use of the Platform will result in you or your Authorised Users achieving any specific result;
(iii) the Provider makes no representations about the suitability of the Platform for any purpose;
(iv) the Provider does not guarantee the performance of any backup or storage of the User Data;
(v) the Provider makes no guarantees that there will be no loss or corruption of User Data at any time;
(vi) the Provider cannot guarantee the accuracy, currency, suitability, reliability and availability of the Platform and any content gained within (this is due to software bugs as described below);
(vii) the information provided on and in the Platform is general information and is not in the nature of financial, legal or any form of advice. You should obtain advice before making any decision based on the Platform;
(viii) the Services are tools that are not intended to replace the professional skills and judgment of you and your employees, agents, and consultants. You are solely responsible for the accuracy and adequacy of information and data furnished for processing and any use made by you of the output of the Services or any reliance thereon by you or users of your product;
(ix) the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Platform at any time, without notice;
(x) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from defects, errors and bugs;
(xi) the Provider will maintain technical and organisational measures to protect the security of the User Data that it considers appropriate. However, the Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the User Data for improper purposes. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and User Data. Accordingly, any User Data that is transmitted by you is transmitted solely at your risk. You are solely liable for your User Data.
(b) The Provider makes no guarantees that there will be no loss or corruption of your User Data at any time, or that data backups will readable, or that any User Data is able to be backed up or recovered. Unfortunately, data loss happens you agree to hold harmless and release the Provider for any Loss you suffer in the event that your User Data is lost.
(c) The World Wide Web exists across open public networks that are neither secure nor private. Accordingly, you acknowledge and accept the risk that any communication to or from the Platform may be intercepted, used or modified by third parties.
11. Exclusion and Limitation of Liability
(a) Subject to the other terms of this clause, each party excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services provided by that party, that are not expressly set out in this Agreement to the maximum extent permitted by law.
(b) Concerning the liability of each party to the other party, each party will not be liable for any Loss to the extent that:
(i) it is caused by the other party’s negligent act or omission;
(ii) it results from the other party failing to take reasonable steps to avoid or minimise the Loss; and
(iii) it is caused by events outside of that party’s reasonable control.
(c) Without limiting the other terms of this clause, because of the nature of the Services, which combines public and private information that is conveyed over the public internet, to the maximum extent permitted by law and except to the extent caused by the Provider’s negligent act or omission:
(i) the Provider shall not be held liable for any damage caused as a result of your use of the Service, its unavailability, or any errors or faults in the Service;
(ii) you alone shall be responsible and liable for the maintenance and backup of all your User Data; and
(iii) you will be responsible for any usage or breach of any data rule, regulation, or restriction, including but not limited to any GDPR restriction.
(d) Subject to the other terms of this clause, the liability of either party for any Loss arising out of or in connection with this Agreement, including any breach by that party of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, will not exceed an amount equal to the amount of the Fees payable for the Services most directly related to the claim. The liability of either party for any claim arising out of or in connection with any Service will not exceed an amount equal to the amount of the Fees payable for such Service. The total aggregate liability of either party for each and all claims arising out of or in connection with this Agreement will not exceed an amount equal to the aggregate total amount of all Fees paid or payable under the Agreement in the 12 month period immediately preceding the date of the event giving rise to the claim.
(e) Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
(f) If the Provider is liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider’s total liability to you for that failure is limited to, at the option of the Provider the resupply of the services or the payment of the cost of resupply.
(g) Without limitation to the other terms of this clause, each party excludes any liability to the other party, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.
(h) Notwithstanding anything else in this clause 11, each party’s liability will be reduced to the extent the Loss or damage is caused by or contributed to by the other party or their Personnel.
12. Updates
(a) You acknowledge and agree that this Agreement applies to updates, supplements and add on components of the Platform.
(b) The Provider reserves the right to discontinue the provision of the Services at any time without notice.
(a) If the Provider reasonably considers that you are using the Platform in breach of this Agreement, the Provider reserves the right to remove any infringing User Data from the Platform and the Provider shall have no liability to you.
(b) The Provider reserves the right to deny you access to, or use of, all or part of the Platform, without prior notice, if you engage in any conduct that the Provider believes, in its sole discretion:
(i) violates any term or provision of this Agreement or any other terms or policies of the Provider in place from time to time;
(ii) violates the rights of the Provider or any third party; or
(iii) is otherwise inappropriate for continued access and use of the Platform.
(c) The Provider may terminate your right to access to, or use of, all or part of the Platform, immediately on written notice to you if you:
(i) commit a breach of this Agreement, which is capable of remedy, and you fail to remedy the breach within a reasonable time of a written notice to do so;
(ii) commit a breach of this Agreement which cannot be remedied;
(iii) are repeatedly in breach of this Agreement; or
(iv) are the subject of a bankruptcy order, or become insolvent, or make any arrangement or composition with or assignment for the benefit of your creditors, or if you go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over your assets.
(d) We may otherwise terminate your access to the Platform at any time in our discretion.
(e) On termination of this Agreement or the relevant Software Licencing Agreement that we have entered into with your Employer, your right to use the Platform shall cease.
(f) Termination of your access to the Platform shall be without prejudice to the rights of the parties accrued before termination. All restrictions imposed on you, disclaimers and limitations of liability set out in this Agreement will survive termination.
14. General
(a) The Provider may vary the terms of this Agreement immediately, without notice to you, where the Provider considers that the change is likely to benefit you or otherwise have a neutral impact on you.
(b) The Provider may also vary the terms of this Agreement on giving 3 days’ notice if the Provider considers that the change will have a minor detrimental impact on you or where such change is necessary and reasonable (for example to reflect any changes to the Services or to comply with legal requirements). The Provider may lessen this period of time where necessary to comply with any legal requirements or notices (where urgent).
(c) The Provider may also vary the terms of this Agreement on giving 30 days’ notice if the Provider considers that the change will have more than a minor impact on you.
(d) This Agreement constitute the entire agreement between you and the Provider with respect to the Platform, and the Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the Platform.
(e) No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
(f) If any provision of this Agreement is found to be invalid or unenforceable, that provision shall be enforced to the maximum extent possible and will be deemed deleted to the extent that it is not enforceable, and the remaining provisions of this Agreement shall remain in full force and effect.
(g) The failure by the Provider to insist upon or enforce strict performance of any of this Agreement will not be construed as a waiver of any right or remedy of the Provider in respect of any existing or subsequent breach of this Agreement.
(h) No waiver by a party of a provision of this Agreement is binding unless made in writing.
(i) The laws of New South Wales, Australia govern this Agreement. You hereby consent and submit to the non-exclusive jurisdiction and venue of the Courts of New South Wales and the Commonwealth of Australia for any cause of action relating to or arising under this Agreement.
(j) The Provider operates the Platform in Australia. Information contained on the Platform may not be appropriate or available for use in other locations. If you access the Platform from other locations, you do so at your own initiative and you are solely responsible for compliance with local laws.
(k) This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
(l) The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.
(m) The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
(n) You may not assign any part of your rights, title, interest and obligations pursuant to this Agreement to a third party without obtaining the Provider’s prior written consent, which shall not be unreasonably withheld. The Provider may assign the Provider’s rights, title, interest and obligations pursuant to this Agreement to a third party without your consent or notice to you.
(o) Clauses 5, 7, 10, 11 and 13 will survive termination or expiry of this Agreement together with any other clause which by its nature is intended to survive termination or expiry of this Agreement.