IMPORTANT – THIS AGREEMENT IS A BINDING LEGAL AGREEMENT BETWEEN YOU (AND YOUR ORGANIZATION, IF YOU ARE USING THE SITE UNDER THE AUTHORIZATION OF YOUR ORGANIZATION)(COLLECTIVELY, YOU, YOUR) AND DISPLAYR AUSTRALIA PTY LTD ABN 12 104 572 812 (WE, US, OUR, DATACRACKER). BY CLICKING ON THE ‘ACCEPT’ BUTTON OR BY USING THE DATACRACKER SITE AND ANY ASSOCIATED SERVICES, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT AND AGREE, ON BEHALF OF YOURSELF AND YOUR ORGANIZATION, IF APPLICABLE, TO BE BOUND BY THEM. IF YOU (OR YOUR ORGANIZATION, IF APPLICABLE) DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CLICK ‘CANCEL’ AND/OR DO NOT USE THE DATACRACKER SITE AND/OR SERVICES. IF YOU (OR YOUR ORGANIZATION, IF APPLICABLE) DO NOT AGREE TO THE TERMS OF THIS AGREEMENT BUT HAVE ALREADY PAID US FOR THE DATACRACKER SITE AND/OR SERVICES, PLEASE CONTACT US TO ORGANIZE A REFUND.
- (a) This agreement commences on the earlier of the date when you commenced using the Site or click on the 'ACCEPT' button (Commencement Date).
- (b) Subject to you paying us the Subscription Fees, all Subscriptions for the Site commence on the date the subscription was purchased when ordering a non-free version of the Site (Subscription Commencement Date) and expire one (1) year after the Subscription Commencement Date, or one (1) month after the Subscription Commencement Date if paying monthly, unless terminated earlier. You may renew the Subscription for further periods of one (1) year or (1) month where applicable each subject to the terms of the Site Subscription Agreement at the relevant time and to you paying the applicable Subscription Fees for the Renewal Period.
- (c) You will be given access to the Site upon completion of the payment.
- (d) The agreement expires when all Subscriptions granted to you under the agreement expire.
2. Software Subscription
(a) We grant to you a limited, non-exclusive, non-transferable Subscription during the Term to, subject to clause 4:
- (i) use the Site for the business purposes of your organization only (which may include preparing reports, presentations or databases for your clients), or for personal use where purchased for personal use; and
- (ii) use the Documentation strictly in conjunction with your use of the Site.
(b) Your Subscription is intended for single use. This means that if you have multiple users frequently accessing the same account from various locations, you may reach a thershold and your account will be temporarily locked down.
3. Subscription Fees
3.1 Subscription Fees
- (a) Fees and charges are as indicated on datacracker.com/Plans.
- (b) DataCracker shall automatically renew the subscription on the Renewal Date unless it is cancelled using the tool in the account page on the site prior to the Renewal Date. A cancellation becomes effective on the Renewal Date.
- (c) We reserve the right to vary the Subscription Fees for each Renewal Period and will provide you with notice of any such variation at least one (1) month prior to the Renewal Date.
- (d) You warrant that credit card information provided to DataCracker is correct, and shall promptly notify DataCracker of any changes to the credit card information. If the User’s credit or charge card payment cannot be processed for any reason, DataCracker may suspend or Cancel the Subscription.
3.2 Payment dispute
If you dispute the validity of a payment:
- (a) you must promptly give us notice of the details and the nature of the dispute; and
- (b) each party must continue to perform their other obligations under the agreement.
3.3 Resolution of payment dispute
Each party may invoke the dispute resolution procedure set out in clause 14 to attempt to resolve the dispute.
You warrant that information provided to DataCracker by you is complete and accurate. You shall keep this information up to date. You are responsible for the account and all activities associated with the use of that account, irrespective of whether or not you have authorized such activities.
5. User content
In consideration of us granting you the Subscription you acknowledge and agree that:
- (a) the "User Content", which includes all text, data, images, survey responses, data, messages and any other materials communicated, submitted or transmitted by you or users of your reports (including online reporting), whether uploaded, publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated, irrespective of whether it was or was not authorized and/or created by you;
- (b) you, and not DataCracker, are responsible for all User Content, including any content included in the Site or the Services by any third party;
- (c) the User Content shall comply with all local and international laws applicable to you, including any of the following laws and regulations were applicable: data protection, privacy, defamation, obscenity, intellectual property, child protective email address registries and security regulations;
- (d) you grant to DataCracker an irrevocable, non-exclusive, royalty-free and worldwide license to use such User Content for the purpose of operating the Site and supplying the Services, and you warrant to DataCracker that you have the right to grant such license for such purposes;
- (e) DataCracker does not control the User Content of you or other users of the Site and/or the Services, and does not guarantee the quality, integrity or accuracy of such User Content;
- (f) DataCracker may, but has no obligation to, review all User Content and block, modify, terminate access to, or remove User Content that DataCracker, at its sole discretion, considers not to comply with any of the requirements of this agreement;
- (g) DataCracker has the right to purge User Content from the Site and its databases at any time and without notices, and DataCracker shall not be liable for any purging, deletion or failure to retain any such User Content,
- (h) You are solely responsible for backing up any User Content, including materials uploaded onto the Site and created by the Site or other DataCracker services
6. Conditions of use
In consideration of us granting you the Subscription and unless we agree otherwise in writing, you must not:
- (a) copy or reproduce all or part of the Site;
- (b) alter, hack, crack, modify, tamper with, decompile, disassemble, adapt, create derivate works of, reverse engineer or attempt to reverse engineer the Site or otherwise attempt to derive the Site source code from the object code or to determine any other aspect of the Site, except to the extent permitted by applicable law or treaty;
- (c) upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer, the Site, or the Services;
- (d) sell, rent, lease, sub-license, assign or otherwise transfer all or part of your Subscription or any of your rights under this agreement;
- (e) use the Site to provide commercial software hosting or time sharing services;
- (f) use the Site for any unlawful purpose;
- (g) remove or tamper with any copyright or similar proprietary notice, rights management information, acknowledgement, attribution, trade mark, warning or disclaimer attached to, incorporated in or otherwise applied in connection with the Site;
- (h) use any type of spider, virus, worm, Trojan horse, time bomb or other malicious codes or instructions that are designed to disable, damage or disassemble all or part of the Site;
- (i) breach the terms of the Subscription or this agreement;
- (j) interfere with or disrupt the Site or the Services or servers or networks connected to the Site or the Service;
- (k) engage in excessive usage of the Site or the Services, as determined by DataCracker at its sole discretion, including usage that adversely affects the responsiveness, speed, or functionality of the Site, or which disrupts the availability of the Site and/or the Services for other users;
- (l) disobey any requirements, procedures, policies, or regulations of networks connected to the Site or the Services, including this agreement and any other policies, procedures, or regulations displayed on the Site,
- (m) the User Content shall comply with clause 5 and shall not be the User Content shall not be defamatory, obscene, threatening, offensive or illegal;
- (n) allow anyone else (except us) to do any of the things referred to in paragraphs (a) to (m) above.
7. Support Services
(a) Except for the Free version of the Site, we will provide you with:
- (i) technical support in relation to the Site by email or other means; and
- (ii) updates or upgrades of the Site.
- (b) Generally, the technical support service does not include providing you with information that is already available in documentation or basic information in relation to installing, operating, and maintaining computers, software and information technology systems. We will only provide technical support to your personnel who are duly qualified and have the requisite experience in connection with operating software and information technology systems for the manipulation and analysis of survey data and they should review the documentation before seeking technical support services.
- (c) We provide training and consulting services for our Software for a fee. Please contact us if you would like to find out more about our training services.
8. Intellectual Property Rights
8.1 No transfer
- (a) All right, title and interest (including all copyright and other Intellectual Property Rights) in the Site is licensed or owned by us.
- (b) This agreement does not transfer to you any title to the Intellectual Property Rights in the Site and you must not represent that you own those rights.
8.2 Modifications and feedback
If you modify, or authorize the modification of, the Site (whether in breach of other clauses of this agreement or not) or if you provide us with any feedback, suggestions, recommendations or information in relation to the Site (collectively Modifications):
- (a) you must promptly notify us of the Modifications (and provide us with any other information and details that we may reasonably request for in relation to the Modifications);
- (b) we own any Intellectual Property Rights in the Modifications;
- (c) you now assign to us (or will procure the assignment to us of) all Intellectual Property Rights in the Modifications and you must do (or procure the doing of) all things necessary to effect this assignment;
- (d) you must not do or omit to do anything that may prejudice our rights and interests over the Intellectual Property Rights in the Modifications (including the right to apply to register such Intellectual Property Rights in any jurisdiction);
- (e) the Modifications are included in the Subscription once they are created;
- (f) unless otherwise notified by you to us in writing at the time of providing us with the Modifications, you represent and warrant that the Modifications do not breach any third party rights (including any Intellectual Property Rights);
- (g) you acknowledge and agree that you do not have any claim to any profits arising in any way from the Modifications; and
- (h) to the extent that there are any Moral Rights in the Modifications, you presently waive (or will procure the waiver from the relevant individual author of) such Moral Rights and voluntarily and unconditionally consent to (or will procure the relevant individual author to voluntarily and unconditionally consent to) all or any acts or omissions by us, or any person authorized by us, which will otherwise infringe such Moral Rights.
8.3 Unauthorized use of the Site
You must promptly:
- (a) report to us any suspected or actual unauthorized use of the Site of which you become aware; and
- (b) provide us with all assistance reasonably requested by us to protect the relevant rights in the Site.
9. Confidential Information
A party must keep the other party's Confidential Information confidential.
9.2 Use and disclosure of Confidential Information
A party may only:
- (a) use the other party's Confidential Information for the purposes of this agreement; and
- (b) disclose that information to its Personnel, if:
- (i) they must know for the purposes of this agreement (but only to that extent);
- (ii) it first directs them that the information is confidential and must be kept confidential; and
- (iii) it ensures its direction is complied with and that all steps are taken to prevent or stop any actual or suspected breach of the direction.
Clause 9 does not apply to information that (whether before or after the date of this agreement):
- (a) is public knowledge (except because of a breach of confidentiality by a party or any of its disclosees); or
- (b) is required to be disclosed by law (but only to that extent).
9.4 Disclosure required by law
If a party must disclose the other party's Confidential Information by law under clause 9.3(b), the party must first:
- (a) give the other party:
- (i) notice of the details of the proposed disclosure;
- (ii) reasonable opportunity to do what it thinks necessary to protect the confidentiality of the information; and
- (iii) any help reasonably required by the other party to protect the confidentiality of the information; and
- (b) give the proposed disclosee notice that the information is Confidential Information of the other party.
- (a) give the other party:
9.5 Exercise of degree of care
A party must exercise at least the same degree of care and diligence in protecting the confidentiality of the other party's Confidential Information as it exercises in relation to its own Confidential Information.
10. Limitation and exclusion of liability
10.1 Application of clause
Clause 10 does not exclude or modify any condition or warranty implied into this agreement, or any liability imposed on us, by law if to do so would contravene the law or make any part of clause 10 (10. Limitation and exclusion of liability) void (Non-Excludable Terms).
10.2 Implied conditions and warranties
- (a) To the extent permitted by law, we:
- (i) provide the Site and/or Services 'as is';
- (ii) make no express representations, claims or warranties in relation to the Site and/or Services, including warranties as to quality, performance, non-infringement, fitness for any particular purpose (unless such purpose was notified to us and we represented to you in writing that the Site was fit for that purpose); and
- (iii) exclude all other conditions or warranties (including all conditions or warranties implied by law or custom into this agreement), other than Non-Excludable Terms.
- (b) You acknowledge and agree that you are responsible for determining whether the Site meets your particular needs and for the results obtained from the Site.
- (a) To the extent permitted by law, we:
10.3 Consequential loss
We exclude liability to you (whether arising in contract or tort (including negligence) or under any statute) for any loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, pure economic loss, increased operating costs and any special, consequential or indirect loss suffered or incurred by you or your Personnel.
10.4 Limitation of liability
To the extent permitted by law, we limit our liability:
- (a) for a breach of any condition or warranty or any Non-Excludable Terms to:
- (i) for goods, repairing or replacing those goods or paying the cost of having those goods repaired or replaced; or
- (ii) for services, resupplying the services or paying the cost of having those services resupplied; and
- (b) for any other liability suffered by you in connection with this agreement, to the total Subscription Fee paid by you to us in the 12 month period prior to the occurrence of the cause of action that gave rise to such liability.
- (a) for a breach of any condition or warranty or any Non-Excludable Terms to:
10.5 Sharing of liability
A party's liability is reduced proportionally to the extent that any act or omission of the other party or its Personnel caused or contributed to the other party's loss.
You will indemnify us and hold us harmless against all claims, proceedings, liability, loss, damage, cost and expense (including legal costs) that are or may be incurred or suffered by us arising directly or indirectly in connection with:
- (a) any breach of this agreement by you;
- (b) any unauthorized use or dissemination of the Site by you or your Personnel; and
- (c) any suit, claim or demand brought or made against us due to your conduct, act or omission or the conduct, act or omission of your Personnel.
12.1 Termination by us
We may terminate all or part of this agreement immediately by giving you notice if you breach clauses in this agreement.
12.2 Termination by you
Your sole and exclusive remedy if dissatisfied with any portion of the Site or Services is to terminate this agreement and cease using the Site and/or Services.
12.3 Refunds and returns
Refunds are not available except where required by relevant laws.
12.4 Action on termination
On expiration or termination of this agreement, the Subscription will immediately expire or terminate and you must stop using the Site.
Unless the context dictates otherwise, the Subscription Fees and any other fees or charges quoted by us to you are exclusive of all applicable Taxes. You shall pay all Taxes assessed in connection with this agreement or any Subscriptions or services provided under this agreement, in addition to the Subscription Fees and any other fees or charges quoted by us.
14. Dispute resolution
14.1 No court proceedings unless procedure followed
A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with clause 14.
14.2 Notice of Dispute
A party claiming that a dispute, difference or question arising out of this agreement, including a question as to whether certain services are in scope or not, has arisen (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).
14.3 Negotiated resolution
When a Dispute Notice is given, each party's chief executive officers (or their nominee) must meet and first attempt to resolve the Dispute.
If the chief executive officers (or their nominee) cannot resolve the Dispute under clause 14.3 within 30 days (or longer period agreed between the parties), the Dispute must be settled by arbitration in accordance with the then-current UNCITRAL Arbitration Rules. The appointing authority shall be the Australian Centre for International Commercial Arbitration. The number of arbitrators shall be one. The place of arbitration shall be Sydney, Australia. The language(s) to be used in the arbitral proceedings shall be English.
14.5 Release if other party breaches
If a party breaches clause 14 in relation to a Dispute, the other party need not comply with clause 14 in relation to that Dispute.
14.6 Obligations continue
The parties must continue to perform their respective obligations under this agreement pending the resolution of a Dispute.
Each party must pay its own costs of complying with this clause.
15. Notices and other communications
15.1 Service of notices
A notice, demand, consent, approval or communication under this agreement (Notice) must be:
- in writing, in English and signed by a person duly authorized by the sender; and
- sent by email to, for us, firstname.lastname@example.org and, for you, the last known email address for you that we have on our records.
15.2 Effective on receipt
A Notice given in accordance with clause 15.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received when it is sent, unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice or the sender receives a delivery failure notification,but if it is sent on a day that is not on a Business Day or after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
You acknowledge that the Site may be subject to national and international laws that govern the export of software and you agree to comply with all such laws (where applicable to you).
This agreement may be altered only in writing signed by each party, except that each time the agreement is renewed in accordance with clause 1(b), terms of the Site Subscription agreement at the relevant time will apply (unless otherwise agreed in writing between the parties).
A party may only assign this agreement or a right under this agreement with the prior written consent of the other party.
Each party must pay its own costs of negotiating, preparing and executing this agreement.
Any indemnity or any obligation of confidence under this agreement is independent and survives termination of this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement.
This agreement may be executed in counterparts. All executed counterparts constitute one document.
16.7 Entire agreement
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
16.8 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
A term or part of a term of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of this agreement continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
16.12 Governing law and jurisdiction
This agreement is governed by the law of New South Wales, Australia and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of New South Wales, Australia.
17. Defined terms & interpretation
17.1 Defined terms
In this document:
Business Day means:
- (a) for receiving a notice under clause 14, a day that is not a Saturday, Sunday or public holiday in the place where the notice is received; and
- (b) for all other purposes, a day that is not a Saturday, Sunday or public holiday in the place where a party who is entitled to exercise a right or required perform an obligation, as the case may be, is located.
Business Hours means from 9.00am to 5.00pm on a Business Day.
Confidential Information means information that:
- (a) is by its nature confidential;
- (b) is designated by a party as confidential; or
- (c) the receiving party knows or ought to know is confidential,
and includes information about each party's business operations, finances and customers. In our case, our Confidential Information also includes all information in relation to the Site, Modifications and how they operate.
Documentation means any documentation supplied by us to you relating to the Site or this agreement, including emails, online help, documentation that can be downloaded from our website or that are available from within the Site and help files that are distributed within the Site.
Intellectual Property Rights means all intellectual property rights at any time recognized anywhere in the world, including:
- (a) patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain names, business names and any right to have confidential information kept confidential; and
- (b) any application or right to apply for registration of any of the rights referred to in paragraph (a).
Subscription means the Subscription in clause 2.
Subscription Fees mean the fees payable by you for the Subscription, as agreed between you and us in writing or as notified by us to you in accordance with clause 3.1.
Moral Rights means the following rights in respect of any Intellectual Property Rights:
- (a) the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment);
- (b) the right of attribution of authorship of a work; and
- (c) the right not to have authorship of a work falsely attributed,
(which are rights created by the Copyright Act 1968 (Cth)), and any other similar rights capable of protection under the laws of any applicable jurisdiction.
Personnel means, in relation to a party, the officers, employees, agents, contractors and representatives of the party (but does not include the other party).
Renewal Date means each anniversary of the date on which we first supplied the Site to you in return for a Subscription Fee.
Renewal Period means each period of 12 months, or one(1) month of subscribing monthly, commencing on the Renewal Date.
- (a) the DataCracker software program, namely DataCracker – Free, DataCracker – Basic, DataCracker – Standard and DataCracker – The Lot,
- (b) any training programs and materials for the DataCracker software program;
- (c) any improvements, enhancements, modifications, developments, programming fixes, updates or upgrades of the DataCracker software program supplied by us to you under this agreement; and
- (d) the Documentation.
Tax means all duties, taxes, imposts, deductions, charges and withholdings imposed with respect to any transaction contemplated under this agreement, including:
- (a) value-added, goods and services, sales or use taxes;
- (b) excise, custom duties and other like taxes, fees or surcharges (including regulatory fees or surcharges); and
- (c) any interest, penalties, charges, fees or other amounts payable on or in relation to the taxes referred to in paragraphs (a) and (b),
but excluding taxes on income, revenue or capital gains.
Term means the term of the free trial Subscription, or all Subscriptions other than the free trial Subscription, as the case may be, and as defined in clause 1.
In this agreement, except where the context otherwise requires:
- (a) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- (b) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
- (c) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
- (d) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
- (e) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- (f) any agreement, representation, warranty or indemnity in favor of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
- (g) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
- (h) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.
Headings are for ease of reference only and do not affect interpretation.
TO PROTECT YOUR INTERESTS, PLEASE READ THESE TERMS CAREFULLY BEFORE YOU CLICK THE 'ACCEPT' BUTTON. BY CLICKING THE 'ACCEPT' BUTTON AND/OR CONTINUING TO INSTALL AND USE THE SITE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THE RIGHTS AND OBLIGATIONS SET OUT IN THEM, AND THAT YOU (OR YOUR ORGANIZATION, IF APPLICABLE) EXPRESSLY CONSENT TO BE BOUND BY AND ABIDE BY THEM.
Last Modified: 15 March 2017