Spark Chart – Website and Licence Terms and Conditions

1. General

This Agreement is between You and Spark Chart Pty Ltd ACN 167 180 127 (“Spark Chart”) and governs the use of the Spark Chart website (“Site”) and the sale and use of the Spark Chart software services (“Services”).

2. Site Use

2.1. When You visit the Site, Spark Chart grants You a limited licence to access and use our Site and Site information for personal use.

2.2. You are permitted to download a copy of the information on this Site to your computer for your personal use only provided that You do not delete or change any copyright symbol, trade mark or other proprietary notice. Your use of Spark Chart content in any other way infringes our intellectual property rights.

2.3. Except as permitted under the Copyright Act 1968 (Cth), You are not permitted to copy, reproduce, republish, distribute or display any of the information on this Site without Spark Chart’s prior written permission.

2.4. The licence to access and use the information on the Site does not include the right to use any data mining robots or other extraction tools. The licence also does not permit You to metatag or mirror the Site without Spark Chart’s prior written permission. Spark Chart reserves the right to serve You with notice if it becomes aware of your metatag or mirroring of the Site.

3. Service Licence

3.1. Upon:

(a) selecting the ‘Accept’ option when purchasing the Services via the Site; or

(b) payment of the license fee for the Services at the point of purchasing the licence for the Services; or

(c) using the Services (whichever comes first),

You are granted a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to access and use the Services in accordance with this Agreement (“Service Licence”).

3.2. The Service Licence will be for the term applicable to the particular Service subscription plan as detailed on the Site, Order Form, Invoice or otherwise notified to You prior to or at the point of Your order being accepted (“Licence Term”). Subject to the Order Form, the applicable Licence Term will expire automatically at the conclusion of the Licence Term, unless terminated earlier in accordance with this Agreement.

3.3. Each and any recurring subscription payment for Services received by Spark Chart will constitute an offer by You to enter into a new Service Licence on Spark Chart’s then terms and conditions.

4. Delivery of Services

4.1. On registration and payment for Services, Spark Chart will provide You with a password to use the Services. For the avoidance of doubt, delivery will be completed and Spark Chart’s obligations in respect thereof satisfied upon Spark Chart making the Services available.

4.2. Support levels for Your Service subscription plan are on the Site.

4.3. You are responsible for all costs and expenses associated with accessing or using the Site or Services, including but not limited to hardware, software and internet expenses.

5. License Conditions

5.1. This Agreement entitles You to use the Service as specified on an Order Form, Invoice, or at the point of sale if the Services were purchased on the Site, as applicable.

5.2. You may not assign Your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Services.

5.3. You may not:

(a) share the Service Licence with others, although You may engage a consultant to use the Services on your behalf to run a survey for You;

(b) permit the use of the Services by more than one user, unless You hold multiple valid licenses.

5.4 Save and except for Survey Content owned by You pursuant to clauses 6.5 -6.7, You may not:

(a) broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Services or any part of Services;

(b) post the Services or part of the Services on any website;

(c) use the Services as a service bureau; nor

(d) create any derivative work of the Services or its accompanying documentation. Derivative works include but are not limited to translations.

5.5. If You have a consultant service subscription plan, You may resell the Services to Your clients and act as a survey creator provided Your clients agree to be bound by this Agreement, in which event the billing accounts must be paid by You and not by your clients.

6. Intellectual Property

6.1. Spark Chart or its subsidiaries, affiliates, and any applicable suppliers retain all rights, title and interest, including all copyright and intellectual property rights, in and to, the Services and the Site, including applets, text, layouts, graphics, logos, button icons, images and all copies thereof.

6.2. All trademarks, brands and logos generally identified either with the symbols TM or ® which are used on this Site are either owned by Spark Chart or we have a licence to use them. Your access to our Site does not license You to use those marks in any commercial way without Spark Chart’s prior written permission.

6.3. Any comment, feedback, idea or suggestion (“Comments”) which You provide to us (but not your survey host/participants) through this Site becomes the property of Spark Chart upon posting. If in future Spark Chart uses your Comments in promoting the Site or in any other way, Spark Chart will not be liable for any similarities which may appear from such use. Furthermore, You agree that Spark Chart is entitled to use your Comments for any commercial or non-commercial purpose without compensation to You or to any other person who has transmitted your Comments.

6.4. If You provide us with Comments (but not your survey host/participants), You acknowledge that You are responsible for the content of such material including its legality, originality and copyright. Spark Chart does not accept liability for anything contained in the post of a user or in any form of communication which originates with a user and not with Us.

6.5. Information and intellectual property passing between survey hosts and survey participants using the Services (“Survey Content”), is the responsibility property of the survey host. Spark Chart maintains a lien over the Survey Content until such time as the survey host has paid to Spark Chart all monies owing and have remedied any breach of this agreement.

6.6. Spark Chart and its agents, contractors and employees may access under a royalty free, non-exclusive perpetual licence, but not publish, the Survey Content for the purpose of providing the Services and undertaking market research and publishing generic statistics which do not identify You.

6.7. Spark Chart accepts no liability in respect of the Survey Content whatsoever or howsoever arising.

7. Hyperlinks

7.1. This Site may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and Spark Chart takes no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply Spark Chart’s endorsement, support, or sponsorship of the operator of that website nor of the information and/or products or services which they provide.

7.2. You may link the Site without our consent. Any such linking will be entirely your responsibility and at your expense. By linking, You must not alter any of the Site’s contents including any intellectual property notices and You must not frame or reformat any of our pages, files, images, text or other materials.

8. Your Obligations

8.1. You may not use the Site or Services for any unlawful activity nor for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes.

8.2. You covenant and warrant that:

(a) all information and data provided by You to us (including billing and contact details provided as part of the customer registration process) or otherwise is true, accurate, complete and up to date;

(b) the person receiving, accessing or using the Services is authorised by You to do so;

(c) You have and will comply with all relevant laws relating to Your use of the Site and Services and Your placement of any order to us;

(d) You will ensure that any log in information and password that is used to access the Site and Services and the details of Your account is kept in a safe and secure manner;

(e) You will promptly notify us if You are or become aware that there is or has been an unauthorised use of Your account, or any other security breach relating to Your account;

(f) You are responsible for any costs associated with Your access to or use of the Site and Services, including Internet access fees;

(g) You are responsible and liable for any person that uses Your user access details and/or password to order Services through the Site;

(h) You agree that we may charge You for all Services that we agree to supply to You that have been ordered by You or using Your account.

8.3. You must not tamper with or hinder the operation of the Site or Services, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Site or via the Services.

8.4. Spark Chart shall not be liable for any damages (including damages for inability to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of Your passwords;

8.5. You must not use the Services or Site other than in accordance with this Agreement and conditions;

8.6  You shall be responsible for providing your own hardware, software and materials as necessary for Sparkchart to render the Services. Except as otherwise You shall be responsible for the application, operation, maintenance and support of Your systems, hardware and software and all components thereof including, but not limited to, the implementation of appropriate procedures, training and safeguards and routine data backups.

Sparkchart is under no obligation to maintain, back-up or store Your content input into the Service and You are responsible for regular back-ups and data extraction.

8.7. Breach of this clause 8 may result in immediate termination or suspension of the Service Licence.

9. Price and Costs

9.1. The subscription price of the Services is stated in the Order Form, or, where You have purchased from the Site, the price stated at the point of sale. The price list is on the Site and Spark Chart may amend the Price at any time. If You have placed an order via the Site, Spark Chart will use reasonable endeavors to fulfill your order at the price listed at the time You made an order.

9.2. Spark Chart will invoice You for Services supplied, or where purchased via the Site. You will be provided with a receipt.

9.3. The subscription price of the Services is inclusive of any tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services.

9.4. Where You have purchased Services not via the Site, You must pay invoices within 30 days of receipt or as otherwise directed by Spark Chart.

9.5. You must pay all amounts due to Spark Chart:

(a) without set-off, deductions, counter-claims or conditions; and

(b) in available cleared funds.

9.6. If You owe any amount to Spark Chart, Spark Chart may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:

(a) withhold all future supplies of Services until that amount has been paid in full;

(b) set-off that amount against any amount owing by Spark Chart to You; and/or

(c) immediately demand all amounts due and payable under this Agreement.

9.7. If an amount due under this Agreement is paid after the due date You must pay Spark Chart, in addition to the overdue amount:

(a) interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and

(b) all costs and expenses incurred by the Spark Chart in collecting the overdue amount.

9.8. Your obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Services.

10. Warranties and exclusions

10.1. Spark Chart provides Products and Services “as is” and You agree that the existence of errors in Products or Services will not constitute a breach of this Agreement. Unless otherwise explicitly agreed to in writing by Spark Chart, subject to the Implied Terms, all representations, guarantees, conditions and warranties of any nature are expressly excluded.

10.2. Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Spark Chart and its subsidiaries, affiliates, and suppliers (“Implied Terms”). If these Implied Terms apply, Spark Chart’s liability will be limited at its option to resupply, repair or replacement of the Product or Services, or the cost of such resupply, repair or replacement, to the extent permitted by law.

10.3. Nothing in this clause excludes, restricts or modifies Your rights under an Implied Term.

11. Limitation of liability

11.1. Subject to any Implied Term, and to the extent permitted by law, Spark Chart or any of its officers, employees, contractors or agents will not be liable to You for any Losses incurred by You or Claims made by You as a result of using the Site, Services, Products, any documentation provided to You or any linked website and/or the development or handling of any Survey Content.

11.2. Spark Chart’s liability is reduced proportionately in the event that You contributed to any Claim or Loss suffered by You.

12. Licensee indemnity

You will indemnify Spark Chart, its directors, officers, employees, agents and contractors in full against any Claims or Losses as a result of or in connection with Your use of the Site, Product and Services and/or the development or handling of any Survey Content.

13. Privacy

13.1. Spark Chart undertakes to take all due care with any information which You may provide to Spark Chart when accessing the Site. However Spark Chart does not warrant and cannot ensure the security of any information which You may provide to it. Information You transmit to Spark Chart is entirely at your own risk although Spark Chart undertakes to take reasonable steps to preserve such information in a secure manner.

13.2. Spark Chart’s compliance with privacy legislation is set out in Spark Chart’s separate Privacy Policy which may be accessed from the Site.

14. Variation of Terms

Spark Chart reserves the right to amend this Agreement from time to time. Such amendments will be either: (a) published on the Site from which the Services were purchased; (b) notified to You via email directing You to a link; or (c) notified to You by post.

15. Termination

15.1. Without prejudice to any other rights, Spark Chart may terminate this Agreement immediately and without further notice if You fail to comply with this Agreement.

15.2. Spark Chart reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice, in which event You shall be given a pro rata refund for that portion of the Services Licence fee already paid for at the time of discontinuation and which cannot be used after discontinuation.

15.3. Where You have a Service subscription plan and you cancel part way through a period, your subscription fee for that entire period remains payable to Spark Chart and is non-refundable.

16. General provisions

16.1. If any provision of the Agreement is prohibited, illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of this Agreement.

16.2. The failure, delay, relaxation or indulgence by a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right, or remedy. All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.

16.3. This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.

16.4. This Agreement shall be governed by and construed in accordance with the laws of Western Australia.

17. Definitions and interpretation

17.1. Definitions

In this Agreement unless the context otherwise requires:

Agreement means this agreement, all schedules and, if the Products or Services were not purchased on the Site, an Order Form;

Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgement of any nature, whether known or unknown;

Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower;

Invoice means an invoice issued by Spark Chart to You;

Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental;

Order Form means an order form agreement signed by the Parties for the purchase of Products and or Services;

Product means the products as detailed on the Site or Order Form;

Service means the web based survey tool software as a service provided by Spark Chart as detailed on the Site or Order Form;

Site means any Spark Chart website; and

You means a person visiting the Site or responding to a survey hosted using the Service, the person named on the Order Form, or where the Products or Services are purchased via the Site, the person who has purchased the Products or Services.

17.2. Interpretation

In this Agreement unless the context otherwise requires:

(a) the singular includes the plural and vice versa;

(b) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(c) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(d) a reference to any thing is a reference to the whole and each part of it;

(e) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and

(f) a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.