Yomstar Terms & Conditions

Welcome to YomStar.

In these Yomstar Terms & Conditions (“T&Cs”), “we” or “us” means Yomstar Australia Pty Ltd (ACN 600 371 202) and “you” means a user of the YomStar Platform (as defined below).

Through our websites (including www.yomstar.com) (“Site”), we provide web-based software, tools and materials to enable you to create and send cutting-edge engagements straight to your customers, and to offer rewards to drive repeat business. We provide you with access to tools to create a campaign, we host the engagements and response data, and provide you with access to tools to run a range of reports on the results (“YomStar Platform”).

These T&Cs govern your access to and use of the YomStar Platform. The YomStar Platform include access to the Yomstar Tools (the software which allows you to create campaigns, send engagements and create reports) and the Yomstar Materials (including our copyrighted works, trade marks and other intellectual property).  We provide you with a licence to the YomStar Platform on the terms set out in these T&Cs.

By accessing or using the YomStar Platform, you agree to be bound by these T&Cs. Other terms, policies and agreements may also apply to you.

Part 13 sets out the definitions that apply to these T&Cs.

1. SIGNING UP

Signing up: By signing up to the YomStar Platform either through our Site, with us directly or through one of our authorised representatives, you are entering into an agreement with us to provide you with access to the YomStar Platform. This agreement is comprised of these T&Cs, your Order Form, our Privacy Policy, and all other applicable terms or policies incorporated by reference (the “Agreement”).

Confirmation Page: If you have signed up through our Site, once we have entered into the Agreement with you, we will send a confirmation page to you by email. The confirmation page will contain details of your order and a copy of or a link to the terms and policies forming the Agreement, including these T&Cs.

Registering for a Membership Account: If you have signed up through our Site, you must register an account to access and use the YomStar Platform (“Membership Account”).  If you have signed up with us directly or through one of our authorised representatives, a Membership Account will be created for you and you will need to validate the account by following the link in the email we send you.  You will not able to access the members’ area of our Site (or the YomStar Platform) unless you have a valid and active Membership Account. Unless otherwise specified in the Agreement, you may only register one Membership Account.

User Name and Password: To create a new Membership Account, you must provide your email address and choose a password.  Your “user name” will be the email address used to register your Membership Account. Please ensure your user name and password are kept securely. You are responsible for any misuse of your user name, password or other log-in details by any person, and for any authorised or unauthorised use of your Membership Account. Please contact us immediately if you suspect that there has been any unauthorised access to or use of your account or disclosure of your log-in details.

User Information: You warrant that any information you provide to us about yourself is current, accurate and complete (and that you will keep this information up to date by notifying us if and when it changes). By entering into the Agreement with us, you agree that we can use your information to contact you in relation to future promotions, products, packages or other services offered by us, or that otherwise relate to the YomStar Platform. Any personal information we handle will be dealt with in accordance with our Privacy Policy.

2. WHAT WE OFFER

YomStar Platform: The YomStar Platform allow you to design engagements which Respondents can access. You can also offer rewards and incentives to increase the likelihood of receiving responses. We host the data and the Yomstar Tools allow you to run reports on the responses. The Yomstar Tools and Yomstar Materials licensed to you may change from time to time as we aim to continually improve the YomStar Platform.

Services: You might be interested in the Services we offer, such as implementation , design,  engagement creation, social media strategy, access to our Yom Media audience channels and more (“Services”). If we have agreed to provide Services to you that are outside the scope of the YomStar Platform, those Services will be set out on your Order Form (or a separate Yom Media Order Form) and governed by the Services Terms and Conditions (“Services T&Cs”) and the Services T&Cs will form part of the Agreement.  For the avoidance of doubt, the Services T&Cs do not apply to the provision of the YomStar Platform unless otherwise specified.

Add-ons: From time to time, we offer add-ons to the YomStar Platform. You may request an add-on on your Order Form, or if an add-on is offered to you after you submit your Order Form, for example via the Site or by email, then by notifying us in writing.  If you request an add-on to the YomStar Platform, you agree to comply with any third party terms and conditions that apply (including any listed in Part 17) to the add-on and acknowledge the add-on may result in additional Fees being payable.  Add-ons form part of the YomStar Platform once accepted.

Yomstar Now (Free) Trial: If you have not yet subscribed for a paid service, we may offer you a Yomstar Now (Free) Trial Package. The YomStar Platform we agree to provide to you as a part of the Yomstar Now (Free) Trial Package are entirely at our discretion. We may decide to change, suspend or terminate your access to the Yomstar Now (Free) Trial Package (either in whole, or in part) at any time.

Help Desk Support: To answer all of your questions and ensure that you achieve the maximum benefit from the YomStar Platform, we provide help desk services. Please refer to our for more information on this service.

Scope of Help Desk Support: We offer help desk support to assist you to implement the YomStar Platform and to troubleshoot any issues in a responsive and supportive manner. However, to the maximum extent permitted by law, we do not provide any warranties or make any representations about the availability, quality, accuracy or correctness of the help desk services or accept any liability for any Loss suffered in respect of the help desk services.

3. SUBSCRIPTION AND PAYMENT

Term: The Agreement commences on the Commencement Date and continues until the Agreement expires in accordance with your Order Form, or until terminated in accordance with Part 14 (whichever occurs first). The Agreement may be renewed for a further term, subject to our agreement. Any such renewal will be on the same terms as the Agreement.

Payment methods: The payment methods available to you will be outlined on the Order Form.  If there is a delay in any payment (including processing delays), you may not be able to access your Membership Account until the payment is received by us.  If you have been introduced to the YomStar Platform by one of our authorised representatives, we may require you to pay the Fees to them.

Automatic Renewal: If your Order Form specifies that the Agreement will automatically renew at the end of the Term for an additional period, the Agreement will be automatically renewed for that period at the end of the Term. Once the Agreement has been renewed once, you may terminate the Agreement by providing 30 days’ notice to us.

What happens to my data if I don’t renew, the Agreement expires or I terminate the Agreement: If you choose not to renew the Agreement, we do not agree to renewal of the Agreement, the Agreement expires or if you terminate the Agreement following an automatic renewal, we will suspend access to your account for 30 days following the expiry of the last month that has been paid for or the date of expiry.  We will retain your data during this 30 day suspension period in case you change your mind. After the 30 day suspension period, we will terminate your Membership Account and will not be obliged to retain your data. You can export any results or information you have gathered through the YomStar Platform at any time during the Term and for 7 days after expiry of the Term. You will not be able to export any results or information after that unless you renew the YomStar Platform during the 30 day suspension period.

What if I want to upgrade? You may be able to vary your order by contacting us. Additional Fees may be payable or a different payment regime may apply.

Changes to YomStar Platform, T&Cs and Fees: Our business and the environment in which we operate is constantly evolving, and we may make changes to the YomStar Platform or these T&Cs during the Term. If we determine that these changes have had a material negative affect on your ability to use the YomStar Platform or your rights or obligations, then you will be entitled to terminate the Agreement by providing notice to us within 30 days of being notified of the changes.  Your continued use of the YomStar Platform during and after this 30 day period constitutes your acceptance of any changes. Notwithstanding any changes to the YomStar Platform or these T&Cs, all Fees will remain the same during your current Term and you will be notified of any changes in Fees for any renewal period before the end of the current Term.

Payments: All payments must be made in Australian currency. We reserve the right to charge interest at a rate of 4% on any overdue payments and (without limiting any of our other rights) to suspend access to your Membership Account until all outstanding amounts are paid.

4. LICENCE AND USE OF THE YOMSTAR TOOLS AND MATERIALS

Licence to Use: Once your Membership Account has been activated, provided you are complying with the terms of the Agreement and have paid any outstanding Fees, we grant to you a limited, non-exclusive, non-transferable licence to access and use the Yomstar Tools and Yomstar Materials solely for your internal business purposes and as contemplated by this Agreement for so long as you have a valid and active Membership Account. This includes a licence to export your Respondent Data and download and reproduce a QR Code, URL address or other activation device as applicable. This licence may be restricted to a particular individual as noted on the Order Form, in which case no other person is permitted to use your Membership Account to access the Yomstar ServicesYomStar Platform.

Use on Products: You must not use or reproduce any Yomstar Materials  (other than QR Codes or URLs) on any physical product (including promotional or written materials) that is not supplied to you by us without our consent.

Restrictions on Use: You must not and must ensure that any additional authorised users (who have access to the Yomstar Tools and Yomstar Materials) do not:

  1. acquire, download, reproduce, or install the Yomstar Tools, in whole or in part, on any computer equipment;
  2. sell, lease, license, sub-license, rent, loan, timeshare, encumber, distribute or otherwise transfer the Yomstar Tools or Yomstar Materials, in whole or in part, to any other person;
  3. use the Yomstar Tools in any application or for any purpose not contemplated by the Agreement;
  4. decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the Yomstar Tools, in whole or in part, or develop software or derivative works based upon the Yomstar Tools or the Yomstar Materials;
  5. remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of the Yomstar Tools or the Yomstar Materials;
  6. provide, disclose, divulge, make available to, or permit use of the Yomstar Tools or the Yomstar Materials, in whole or in part, by any unauthorised third party;
  7. remove, obliterate, or obscure from view any copyright, trade mark or confidentiality notice or legend appearing on or within the Yomstar Tools, the Yomstar Materials or on our Site; or
  8. amend, modify, adapt, copy, disclose, distribute, transfer or otherwise use or exploit any of the Yomstar Tools or the Yomstar Materials for any purpose which does not relate to use of the YomStar Platform or Site.

5. Your GENERAL Obligations

Compliance: You agree at all times to only access and use the YomStar Platform, to advertise and offer any engagement, Reward or Trade Promotion and to use, disclose, store and retain any Respondent Data strictly in accordance with:

  1. your Agreement with us;
  2. any applicable laws and regulatory requirements (including, without limitation, the Privacy Laws, the Spam Act, and any applicable laws and regulations relating to intellectual property, trade promotions, competitions and lotteries, defamation, discrimination, vilification and obscenity); and
  3. any applicable third party terms and conditions, including those third party terms and conditions outlined in Part 17.
  4. Prohibited Conduct: When accessing or using the Site or the YomStar Platform or using, storing, retaining or disclosing any Respondent Data you must not:

  5. act unlawfully, fraudulently, dishonestly, inappropriately, mislead or deceive, or engage in improper behaviour of any kind;
  6. harass, abuse or harm any person;
  7. send unwelcome or unauthorised communications;
  8. infringe any rights or invade or violate the privacy of another person;
  9. impersonate another person, hide your identity or falsely represent an association with another person;
  10. contact or otherwise harm Minors or retain or use information in an identifiable form received from or relating to Minors, except where all necessary and express consents have been obtained from the Minor’s legal guardians;
  11. upload Content which is false, inaccurate, misleading or deceptive, unlawful, defamatory, discriminatory, vilifying, pornographic or is otherwise inappropriate, indecent, inaccurate or objectionable, or for which you do not have the necessary rights or permission to use;
  12. interfere with, gain unauthorised access to or disrupt the availability of the Yomstar Tools, the Site or the YomStar Platform (including but not limited to any servers or networks connected with our Site); or
  13. upload or other transfer any material containing a bug, virus, trojan or similar malicious program or software to the Site or YomStar Platform.

No on-selling: You must not and must ensure that your employees do not offer, advertise, promote, sell or otherwise exploit the YomStar Platform other than as expressly permitted under the terms of the Agreement. If you are interested in on-selling the YomStar Platform, please contact us for further information.

Items you supply: If you supply any items or add-ons to interact with the YomStar Platform, you must provide us with any information, data, APIs or other forms of access that we reasonably request of you.  You must ensure that we have sufficient rights under the terms of any applicable licences to conduct or arrange for the integration between the item or add-on and the YomStar Platform.

6. ENGAGEMENT CREATION

Engagement Conduct: In addition to and without limiting your other obligations under the Agreement, when you create an engagement you must:

  1. comply with the terms of our Privacy Policy, with the Privacy Law and with the Spam Act;
  2. not request sensitive information (as defined in the Privacy Law) in the engagement questions (unless otherwise agreed by us);
  3. if you request sensitive information in accordance with (b), obtain express consent from the Respondent in relation to the collection, storage, use and disclosure of that sensitive information;
  4. make it clear to the Respondent that the engagement is being provided and administered by you and not misrepresent that we conduct, sponsor, endorse or otherwise have any responsibility or liability in relation to the engagement;
  5. maintain effective processes and communication with the Respondents; and
  6. provide contact details (in the form of an email address or telephone number) on the engagement which Respondents can contact for more information about your use of their engagement results.
  7. For the avoidance of doubt, where we create the engagement for you, the Services T&Cs will apply not this Part 6.

7. PROMOTIONS & REWARDS

Trade Promotions and Rewards: In addition to and without limiting your other obligations under these T&Cs, if you offer or advertise a Reward or Trade Promotion to Respondents for completing an engagement, regardless of whether you create the engagement or we create the engagement, you must:

  1. ensure that any Reward or Trade Promotion and the promotion and administration of the Reward or Trade Promotion complies with all applicable laws and regulatory requirements. You acknowledge and agree that you are solely responsible for obtaining any necessary consents, permits or licences;
  2. not act unlawfully, fraudulently, dishonestly, mislead or deceive or engage in improper behaviour in relation to the promotion or administration of the Reward or Trade Promotion;
  3. ensure that the Reward or Trade Promotion does not promote, involve or constitute gambling, alcohol, drugs, tobacco or any other item prohibited or restricted under applicable law;
  4. include or provide a link to any terms or conditions relating to the Reward or Trade Promotion where required to do so in the engagement and ensure you comply with those terms; and
  5. make it clear to the Respondent that the offer is provided by you and not misrepresent that we sponsor, endorse, conduct or have any responsibility or liability in relation to the Reward or Trade Promotion.

You must not offer or promote a Reward or Trade Promotion which does not comply with the above requirements.

8. YOUR CONTENT

Responsibility for Content: You acknowledge and agree that  we are not responsible for and do not accept any liability for Content or any Reward or Trade Promotion originating from you (Your Content) or other users of our Site (including Respondents) and that:

  1. you are solely responsible and liable for Your Content, including any Content originating from Respondents in response to Your Content or use of your Membership Account, whether authorised by you or not;
  2. you may be provided with the opportunity to include text or a link in your engagements to certain terms and conditions or a privacy policy which you wish to apply to your engagement, including in relation to collection of personal information or any Reward or Trade Promotion offered by you. You are entirely responsible for ensuring the necessity, accuracy and completeness of any applicable terms or policies, their effectiveness and enforcement, and the keeping of any records;
  3. you may be exposed to false, misleading or deceptive, unlawful, defamatory, indecent, harmful or otherwise inappropriate or objectionable Content and conduct. You acknowledge and agree that we have no liability or responsibility for the Content or conduct of any other person;
  4. we are under no obligation to monitor, supervise, regulate or control Content originating from you or any third party and do not provide any warranties or guarantees whatsoever, including as to the accuracy, completeness, appropriateness or otherwise of such Content;
  5. you are solely responsible and liable for the promotion, administration and fulfillment any Reward or Trade Promotion; and
  6. you are solely responsible for your use, retention and disclosure, of the Respondent Data and acknowledge that this may include Personal Information of a Respondent. We accept no responsibility for your use, disclosure, storage or retention of any Respondent Data. Any reliance or use of third party Content or Respondent Data is entirely at your own risk. For the avoidance of doubt, it is your responsibility to evaluate and assess the accuracy and completeness of any Respondent Data.

9. RESPONDENT DATA

Your use of Respondent Data: Without limiting your obligations under the Agreement (including obligations to comply with the Privacy Laws or Spam Act), you have a non-exclusive, worldwide  right (including the right to sub-license) to use, exploit, copy, modify or disclose the Respondent Data for any purpose, except where you have utilised Yom Media Services in connection with an engagement. Where you have utilised Yom Media Services in connection with an engagement, your rights to use the Respondent Data are set out in the Services T&Cs.

Our use of Respondent Data: Without limiting our obligations under the Privacy Laws or Spam Act , we have a non-exclusive, worldwide  right (including the right to sub-license) to use, exploit, copy, modify or disclose the Respondent Data for any purpose.

De-identified information: You agree that we may use, exploit, copy, modify, disclose, or licence the Respondent Data and Your Content in an aggregate, de-identified form (including usage and statistical information) for any purpose.

Our rights in respect of Content: Whilst we are under no obligation to monitor or control third party use of our Site and the YomStar Platform, we reserve the right to remove, suspend or delete any Content, engagement, Trade Promotion or Reward from our Site or refuse to provide the YomStar Platform in circumstances where we consider that you:

  1. have breached your obligations under the Agreement;
  2. have acted in a manner that is contrary to the spirit of the Agreement; or
  3. have engaged in conduct that exposes us to a risk of liability or may adversely affect our reputation or the reputation of the YomStar Platform.

10. INTELLECTUAL PROPERTY

Yomstar Tools and Yomstar Materials: You acknowledge that any and all Intellectual Property in or to the Yomstar Tools and Yomstar Materials is our property. Apart from the permitted use under the licence granted in Part 4, you acquire no right, title or interest in or to any of above by virtue of the Agreement and will not take any action, or assist any person to take any action that may jeopardise, limit, challenge or interfere with our ownership of or rights in the Yomstar Tools or the Yomstar Materials.

Content originating from you: We acknowledge and agree that to the extent any Intellectual Property subsists in Your Content, such Intellectual Property vests in and is owned by you. You grant us a non-exclusive, worldwide  right (including the right to sub-license) to use, exploit, copy, modify or disclose Your Content for the purpose of providing the YomStar Platform or any other purpose foreshadowed in the Agreement.

Warranty: You warrant that you own the Intellectual Property in, or have the necessary rights to use Your Content and that any use by you, or any use by us in accordance with these T&Cs of Your Content will not infringe the Intellectual Property or other rights of any other person.

Respondent Data: You acknowledge and agree that to the extent any Intellectual Property subsists in the Respondent Data or any data-base containing Respondent Data, such Intellectual Property vests in and is owned by us. You will not take any action, or assist any person to take any action that may jeopardise, limit, challenge or interfere with our ownership of or rights in the Respondent Data or any data-base containing Respondent Data.

11. INDEMNITY

Indemnity from you: You agree to hold harmless, defend, indemnify and release us and our affiliates and our respective officers, employees, consultants and agents from and against all claims, actions, proceedings and demands (including those brought by third parties), Loss and any other costs (including those incurred in satisfying, defending or settling such claim, proceedings or demand) of any nature arising out of or in connection with:

  1. any breach of the Agreement (whether by you or your officers, employees, consultants, principals or agents);
  2. any breach by you of any applicable laws, regulations or third party terms and conditions;
  3. any access to or use of our Site or the YomStar Platform and Your Content;
  4. anything that you provide to us in connection with the Agreement;
  5. any access to or use of your Membership Account, whether authorised by you or not;
  6.   any Reward or Trade Promotion organised or promised by you; or
  7. your use, disclosure, storage or retention of any Respondent Data.

12. PROVISION OF SERVICES

Hosting and Maintenance: We are not able to guarantee access to the Site or the YomStar Platform at all times. We will try to provide you prior notice of any maintenance works but reserve our right to modify, suspend or discontinue the YomStar Platform and access to the Site or your Membership Account for any reason at any time. You acknowledge and agree that we will not be liable in relation to any periods of inaccessibility.

Storage of Data and Backup: We will host and store Content during the Term, however you are responsible for the backup of this information from time to time and we are entitled to delete or purge any Content in our absolute discretion without notice to you. We do not accept any responsibility or liability for loss of data, failure to receive, administer or store any Content, or for any errors or omission in the Content.

13. LIMITATIONS

No Warranties: To the extent permitted by law, we do not warrant:

  1. the accuracy, reliability or completeness of our Sites or the YomStar Platform or that they will be error, bug, virus free;
  2. that the Yomstar Tools will operate in combination with other software or any particular equipment, or other system, or will provide any function other than those as set out on our Site;
  3. your use of the YomStar Platform or our Site or the YomStar Platform will not infringe the Intellectual Property rights of third parties; or
  4. the accuracy, reliability or completeness of any Content originating from any other users of our Site (including Respondents).

Limitation of implied warranties: All representations, warranties, terms and conditions which would otherwise be implied or imposed in this Agreement are excluded to the maximum extent permissible by law (including, where permitted, any warranty with regard to merchantability, durability, fitness for purpose, or non-infringement of third party rights).

Limitation of Liability: To the maximum extent permitted by law:

  1. neither we nor our affiliates or our respective officers, employees, consultants or agents will be liable to you for any indirect, special or punitive, exemplary or consequential loss or damage, or for any loss of profit or business opportunity, any business interruption or loss of business information and data (even if we have been advised of possible damage) arising out of or relating to the Agreement, your use or not being able to use the Site or the YomStar Platform, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise; and
  2. your sole remedy for any breach of the Agreement by us is limited to termination of this Agreement.

Limitation of Prescribed Terms: Where by law we are unable to exclude any guarantee, warranty, representation, condition or other term or to limit our liability as set out above, but are entitled to limit it, then our liability to you under such terms is limited, at our discretion, to supply the YomStar Platform again or paying the cost of having the YomStar Platform supplied again or, if this is not permitted by law, then otherwise to the maximum extent permitted by applicable law.

14. MEMBERSHIP TERMINATION

Termination for breach: We may terminate the Agreement (including your Membership Account) by immediate notice to you if you are in breach of the Agreement (including these T&Cs). You may terminate this Agreement by notice if, following 30 days’ notice by you of a material breach by us, we have failed to remedy the breach.

Inappropriate Use: Any use of the Site, the YomStar Platform or the Content in a manner which is not in accordance with these T&Cs may result in us deciding to restrict or terminate your access to and use of the Site or the YomStar Platform.

Excessive Use: Access to and use of the Site and the YomStar Platform is subject to an excessive use limitation. We reserve the right to restrict or terminate your access to and use of the Site or the YomStar Platform or your Membership Account to prevent use which in our absolute opinion inhibits or otherwise affects other users’ access to and use of the Site or the YomStar Platform or otherwise affects the speed and functionality of the Site or the YomStar Platform.

Termination for convenience: Except in accordance with the provisions relating to automatic renewal  in Part 3, you may not terminate this Agreement for convenience.

Termination for non-payment or non-use: Without limiting our other rights of termination under this Agreement, we may terminate your Membership Account by immediate notice to you if you:

  1. fail to pay any Fees and any other sums payable by you in relation to the YomStar Platform when due; or
  2. do not log onto your Yomstar Now (free) Membership Account for a period of 6 months.

Suspension of your account where there is a right to terminate: In circumstances where we are entitled to terminate your Membership Account, we may, in our absolute discretion, decide to suspend access to your Membership Account instead. Suspending your Membership Account does not constitute a waiver of our right of termination and we retain the right to terminate your Membership Account at any time.

Consequences of termination: On termination of your Membership Account in accordance with this Part 14 for any reason, the Agreement and all licences granted to you by us will terminate. You will not be entitled to access our Site or the YomStar Platform (including any Respondent Data or Content originating from you on our Site). We will not be obliged to retain or provide the Respondent Data or any Content originating from you. We will not be obliged to provide you with any refund of Fees paid to us, and any outstanding Fees payable by you will become due and payable.

Use of Respondent Data following termination: Following termination of the Agreement, we will be entitled to continue to use, copy, modify, disclose, sell and license the Respondent Data and Content as set out in Part 9 above.

Surviving Clauses: The following parts of this Agreement survive termination or expiry:

  1. Part 3;
  2.  Part 9;
  3.  Part 11; and
  4.  Part 13.

15. GENERAL

Use of Name: Subject to the limitations (if any) set out in the Order Form, you agree that we may refer publicly to the fact that you have utilised our Site or the YomStar Platform in any press release, advertising or other promotional material.

Assignment: You may not assign or transfer your rights or obligations under the Agreement unless with our prior written consent (which we may grant or withhold at our sole discretion).

Notices: All notices provided by you under the Agreement must be provided to the email identified on the . All notices provided by us will be emailed to you at the email address provided to us to create your Membership Account, unless you notify us of a change in email address.

Severance: If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement will otherwise remain in full force apart from such provision which shall be deemed deleted.

No Waiver: Any delay or failure by us to enforce our rights under the Agreement is not to be construed as a waiver of those rights.

Force Majeure: If the performance of the Agreement or any obligations under the Agreement (except for the making of required payments) is prevented, restricted, or interfered with by reason of Force Majeure, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the promptly when the Force Majeure is removed.

Governing Law: The Agreement is governed by the laws of Queensland and you submit to non-exclusive jurisdiction of the courts of Queensland, Australia.

16. INTERPRETATION

In these T&Cs, unless the context otherwise requires, capitalised terms have the meaning given out below, or as otherwise set out in these T&Cs, or another document forming part of the Agreement.

Commencement Date: means the commencement date set out on the Order Form.

Content means any content contained on the Site, in the Yomstar Tools, in an engagement or Reward created or offered through the Site or the YomStar Platform including, but not limited to, any text, engagement, information, question, opinion, response, message, graphic, terms and conditions, policies and any Respondent Data.

Fees means the fees payable in relation to the YomStar Platform or add-ons (including any applicable taxes) as set out on your Order Form, or as amended by us from time to time in accordance with Part 3.

Force Majeure means an act of God, fire, lightning, explosions, flood, subsidence, terrorist act, insurrection or civil disorder or military operations, communications infrastructure failure, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and, any other cause whether similar or not to the foregoing, outside of the affected party’s control.

Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, future copyright, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information be kept confidential, and including the right to register such rights anywhere in the world, but does not include moral rights that are not transferable.

Loss means any direct or indirect cost, expense, debt, obligation, compensation, charge or liability of any kind (including loss of profits, damage to goodwill and loss of business opportunity) whether or not arising from a third party claim.

Minor means a person under the age of majority in their country of residence.

Order Form means the online or physical order form you completed to order the YomStar Platform.

Personal Information has the meaning set out in the Privacy Law.

Privacy Law means any applicable privacy or data protection law (including those in any jurisdiction where the YomStar Platform or Site are provided, used or accessed) and all guidelines issued by the Office of the Australian Information Commissioner (and any similar regulatory body).

Respondent means a person who responds to an engagement or promotion created or used on or through our Site or the YomStar Platform.

Respondent Data means any customer data, information, responses or results or other data received in response to your engagement and any reports, results or other data created from it through the Site or the YomStar Platform.

Reward means any offer, discount, coupon or other benefit offered by you to a Respondent for completing an engagement or responding to a promotion.

Spam Act means the Spam Act 2003 (Cth) as amended from time to time (or other similar legislation).

Term means the term set out on the Order Form.

Trade Promotion means any lottery or game of chance conducted with a view to promoting your goods or services or any other form of competition where the respondent is not guaranteed a prize, which is offered by you through our Site or the YomStar Platform.

Yom Media Services means access to our third party audience channels for the purpose of distributing or otherwise communicating engagements to a specific market or demographic.

Yomstar Materials means any names, logos, trade marks (registered or unregistered), information, formats, designs templates for engagements, graphics and other content and material contained in the Yomstar Tools, on our Site or provided by us (and not by third parties), including any proprietary method provided by us which allows Respondents to initiate an engagement.

Yomstar Tools means the web based software, applications and other tools hosted by us on our Site which enable:

  1. the creation and transmission of engagements, rewards and trade promotions to Respondents;
  2. the provision of data, reporting and analytical procedures in relation to the responses and information received, and;
  3. any modification, development, adaption, enhancement, improvement, revisions, versions or updates of such software, applications and tools that we make available from time to time.

For the avoidance of doubt, the YomStar Tools do not include the downloadable reports.

Your Content has the meaning given to that term in Part 9,

Interpretation Principles: In this agreement, unless the contrary intention appears:

  1. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
  2. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
  3. ‘including’ and similar words are not words of limitation;
  4. a reference to currency is to Australian currency; and
  5. to the extent of any inconsistencies between any parts of the Agreement, the Order Form will prevail.

17. THIRD PARTY TERMS AND CONDITIONS

You must comply with any applicable third party terms and conditions as if you were us, to the extent that the third party terms and conditions apply to access to or use of the Site, the YomStar Platform, or any add-ons.  We may notify you of additional third party terms and conditions that also apply to you from time to time by sending you an email or by placing a notice on the Site.

YomStar Platform: Below is a non-exhaustive list of applicable third party terms and conditions applying to your access to or use of the YomStar Platform:

  1. Amazon Web Services, including:

    1. AWS Customer Agreement (http://aws.amazon.com/agreement/)
    2. AWS Service Terms (http://aws.amazon.com/service-terms/)
    3. AWS Acceptable Use Policy (http://aws.amazon.com/aup/ )

Add-ons: Below is a non-exhaustive list of applicable third party terms and conditions applying to your access to or use of the specified add-on:

  1. Mandrill

    1.  Mandrill Terms of Use  (https://www.mandrill.com/terms/)
    2. API Use Policy (https://www.mandrill.com/api_use/)

Services Terms & Conditions

Welcome to YomStar.

In these Services Terms & Conditions (“Services T&Cs”), “we” or “us” means Yomstar Australia Pty Ltd (ACN 600 371 202) and “you” means a user to whom we provide the Services (as defined below).

In addition to our web-based software, tools and materials (“YomStar Platform”), we offer a range of optional services, including implementation, design, engagement creation, social media strategy, access to our Yom Media Audience Channels and more (“Services”).  The Services are provided separately to the YomStar Platform.

This Services Agreement governs our provision of the Services to you, and your use of the Services.  It forms part of our agreement with you, along with your Order Form, the Yomstar T&Cs (if applicable), our Privacy Policy, and any other applicable terms or policies incorporated by reference (“Agreement”).

By requesting to receive the Services from us either by selecting Services on your Order Form, or by contacting us and requesting Services, you agree to be bound by these Services T&Cs. Other terms, policies and agreements may also apply to you.

For the avoidance of doubt, the Yomstar T&Cs do not apply to the provision of the Services.

Part 10 sets out the definitions that apply to these T&Cs.

1. PROVISION OF SERVICES

Order Form: If Services are specified on your Order Form, we will provide the Services on the terms and conditions of your Agreement including these Services T&Cs.

Contacting Us: If you decide, after we have entered into an Agreement with you for the YomStar Platform, that you would like to receive Services from us, please contact us.  If we agree to provide you with the Services, the provision of those Services will be on the terms of these Services T&Cs, which will form part of our Agreement with you.

Service Fee: Services may be subject to a Service Fee, which will be payable either up-front or on an ongoing basis, as indicated on the Order Form or as otherwise agreed by us in writing.  We can change the Service Fee payable by providing you with 30 days’ notice.  During this 30 day period, you can terminate the Services by notifying us in writing.  If you do not notify us that you wish to terminate the Services, the increased fee will apply.

Payments: All payments must be made in Australian currency. We reserve the right to charge interest at a rate of 4% per annum on any overdue payments and (without prejudice to any of our other rights) to suspend access to the Services until all outstanding amounts are paid.

Term: The Services will either be provided on a month-to-month ongoing basis, for a fixed term, or based on a fixed event (such as for the duration of a promotion, or until a certain milestone is reached) as outlined on the Order Form.

Automatic Renewal: If the Services are provided on a month-to-month ongoing basis, we will continue providing the Services to you each month for the minimum period set out in the Order Form. After this period, you may terminate the Services by providing 30 days’ written notice to us.

Modifications to Agreement: We may make changes to these Services T&Cs during the term.  We will notify you if we consider that any amendments will have a materially negative effect on the Services or your rights or obligations under the Agreement.  In the event that you do not wish to accept any such changes, you are entitled to terminate the Agreement within 30 days of being notified of the changes.

Third Parties: We may use third parties to provide the Services at our sole discretion. Where additional third party terms apply to the Services, we will notify you of, and you must comply with, such terms.

2. NATURE OF SERVICES

Service Specifications: We will provide the Services to you in accordance with the Service Specifications outlined on or annexed to the Order Form.

Services Offered: We offer a range of Services which may change from time to time. We may notify you of any new Services as they become available, and if you wish to proceed with the Services, they will be covered by the terms of these Services T&Cs.

Yom Media Services: If we have entered into a Yom Media Order Form with you, we will provide to you Yom Media Services in accordance with the Service Specifications outlined on or annexed to the Yom Media Order Form. You acknowledge and agree that the third party audience channel for Yom Media Services will be provided in accordance with the Service Specifications and we take no responsibility for the acts or omissions of such third parties.

Your Use of Respondent Data: Except where an engagement utilises Yom Media Services, your rights to use the Respondent Data will be governed by the YomStar T&Cs or other agreement governing your use of the YomStar Platform.

Where an engagement utilises Yom Media Services, you:

may use the Respondent Data to contact Respondents in relation to that engagement and for your internal analytics purposes only;

must not use the Respondent Data to contact or directly market to the Respondents other than as specified in (a) above.

3. YOUR GENERAL OBLIGATIONS

Use of Services: You agree that in procuring the Services, you will not:

  1. use the Services, in whole or in part other than for the purpose for which they are provided to you (as set out in the Service Specifications, either expressly or impliedly), or otherwise as contemplated or permitted by the Agreement;
  2. procure, or attempt to procure any Services for any illegal, unethical or any other purpose that could potentially bring our reputation into disrepute;
  3. sell, lease, licence, sub-licence, rent, loan, distribute or otherwise transfer the Services (or the product of any Services) in whole or in part to any other person; or
  4. provide, disclose, divulge, make available to, or permit use of the Services (or the product of any Services), in whole or in part, by any unauthorised third party.

Compliance: You must strictly comply with:

  1. your Agreement with us; and
  2. any applicable laws and regulatory requirements (including, without limitation, the Privacy Laws, the Spam Act, and any applicable laws and regulations relating to intellectual property, trade promotions, competitions and lotteries, defamation, discrimination, vilification and obscenity).

Prohibited Conduct: In using the Services (or any product of the Services) you must not:

  1. act unlawfully, fraudulently, dishonestly, inappropriately, mislead or deceive, or engage in improper behaviour of any kind;
  2. harass, abuse or harm any person;
  3. send unwelcome or unauthorised communications;
  4. infringe any rights or invade or violate the privacy of another person;
  5. impersonate another person, hide your identity or falsely represent an association with another person;
  6.   contact or otherwise harm Minors or retain or use information in an identifiable form received from or relating to Minors, except where all necessary and express consents have been obtained from the Minor’s legal guardians; or
  7. interfere with, gain unauthorised access to or disrupt the availability of the Services, (including but not limited to any servers or networks connected with our Site) or Site.

Your Terms and Conditions: In connection with the Services, you may be given the opportunity to include text or a link in your campaign or engagement to certain terms and conditions or a privacy policy which you wish to apply to the campaign or engagement, including in relation to collection of personal information or any Reward or Trade Promotion offered by you. You are entirely responsible for ensuring the necessity, accuracy and completeness of any applicable terms or policies, their effectiveness and enforcement, and the keeping of any records.

4. PROMOTIONS & REWARDS

Trade Promotions and Rewards: In addition to and without limiting your other obligations under these Services T&Cs, if you offer or advertise a Reward or Trade Promotion in connection with the Services, you must:

  1. ensure that any Reward or Trade Promotion and the promotion and administration of the Reward or Trade Promotion complies with all applicable laws and regulatory requirements. You acknowledge and agree that you are solely responsible for obtaining any necessary consents, permits or licences;
  2. not act unlawfully, fraudulently, dishonestly, mislead or deceive or engage in improper behaviour in relation to the promotion or administration of the Reward or Trade Promotion;
  3. ensure that the Reward or Trade Promotion does not promote, involve or constitute gambling, alcohol, drugs, tobacco or any other item prohibited or restricted under applicable law;
  4. include or provide a link to any terms or conditions relating to the Reward or Trade Promotion where required to do so in the engagement and ensure you comply with those terms; and
  5. make it clear that the offer is provided by you and not misrepresent that we sponsor, endorse, conduct or have any responsibility or liability in relation to the Reward or Trade Promotion.

You must not offer or promote a Reward or Trade Promotion which does not comply with the above requirements.

You are solely responsible and liable for the promotion, administration and fulfillment any Reward or Trade Promotion

5. INTELLECTUAL PROPERTY

Ownership of Intellectual Property: You acknowledge that any and all Intellectual Property in or to the Services (or any Intellectual Property created as a result of the performance of the Services), excluding Your Materials, are our property. You acquire no right, title or interest in or to any of above by virtue of these Services T&Cs and will not take any action, or assist any person to take any action that may jeopardise, limit, challenge or interfere with our ownership of or rights in the Services (or any Intellectual Property created as a result of the performance of the Services). We grant you a non-exclusive, royalty free licence to use such Intellectual Property to the extent necessary to obtain the benefit of this Agreement for your internal business purposes only.

Your Materials: Subject to the above, you own any Intellectual Property in Your Materials. You grant to us a non-exclusive, royalty free licence to use, reproduce and modify Your Materials to the extent necessary to perform the Services in accordance with this Agreement. You warrant that our use, reproduction or modification of Your Materials does not infringe the Intellectual Property rights of any third party.

6. INDEMNITY

Indemnity from you: You agree to hold harmless, defend, indemnify and release us and our affiliates and our respective officers, employees, consultants and agents from and against all claims, actions, proceedings and demands (including those brought by third parties), Loss and any other costs (including those incurred in satisfying, defending or settling such claim, proceedings or demand) of any nature arising out of or in connection with:

  1. any claim that our use of Your Materials in accordance with the Agreement infringes the Intellectual Property rights of any third party;
  2. any breach of the Agreement (whether by you or your officers, employees, consultants, principals or agents);
  3. if you request sensitive information in accordance with (b), obtain express consent from the Respondent in relation to the collection, storage, use and disclosure of that sensitive information;
  4. any Reward or Trade Promotion organised or promised by you;
  5. any use of Respondent Data other than in accordance with Part 2.

7. LIMITATIONS

No Warranties: To the extent permitted by law, we do not warrant:

  1. the accuracy, reliability or completeness of the Services or that they will be error free; or
  2. your use of any product of the Services will not infringe the Intellectual Property rights of third parties.
  3. Limitation of implied warranties: All representations, warranties, terms and conditions which would otherwise be implied or imposed in the Agreement are excluded to the maximum extent permissible by law (including, where permitted, any warranty with regard to merchantability, durability, fitness for purpose, or non-infringement of third party rights).

    Limitation of Liability: To the maximum extent permitted by law:

  4. our maximum aggregate liability in contract, tort (including negligence), in equity, pursuant to statute or otherwise arising out of, or relating to, the Services is an amount equal to the Service Fees payable by you under the Agreement; and
  5. neither we nor our affiliates or our respective officers, employees, consultants or agents will be liable to you for any indirect, special or punitive, exemplary or consequential loss or damage, or any loss of profit or business opportunity, any business interruption or loss of business information and data (even if we have been advised of possible damage)

Limitation of Prescribed Terms: Where by law we are unable to exclude any guarantee, warranty, representation, condition or other term or to limit our liability as set out above, but are entitled to limit it, then our liability to you under such terms is limited, at our discretion, to the supply Services again or paying the cost of having the Services supplied again or, if this is not permitted by law, then otherwise to the maximum extent permitted by applicable law.

8. TERMINATION

Termination for breach: We may terminate the Agreement by immediate notice to you if you are in breach of any of the Agreement (including these Services T&Cs). You may terminate the Agreement by notice if, following 30 days’ notice by you of a material breach by us, we have failed to remedy the breach.

Termination for convenience: Except in accordance with the provisions relating to termination for imposing an increase on the Service Fee or termination of the automatic renewal of Services in part 1, you may not terminate this Services Agreement for convenience.

Termination for non-payment or non-use: Without limiting our other rights of termination under this Services Agreement, we may terminate the Agreement immediately by providing notice to you if you fail to pay any Service Fees and any other sums payable by you in relation to the YomStar Platform when due.

Termination: Upon termination of the Services (or the Agreement as a whole), you will no longer be provided with the Services, and any product of the Services that is hosted by us will no longer be available.

Surviving Clauses: The following parts of this Agreement survive termination or expiry:

  1. Part 2;
  2. Part 5;
  3. Part 6;
  4. Part 7.

9. GENERAL

Use of Name: Subject to the limitations (if any) set out in the Order Form, you agree that we may refer publicly to the fact that you have utilised the Services in any press release, advertising or other promotional material.

Assignment: You may not assign or transfer your rights or obligations under the Agreement unless with our prior written consent (which may be granted or withheld at our sole discretion).

Notices: All notices provided by you under these Services T&Cs must be provided to the email identified on the Support Page. All notices provided by us will be emailed to you at the email address provided to us on the Order Form, unless you notify us of a change in email address.

Severance: If any provision of these Services T&Cs are held invalid, unenforceable or illegal for any reason, this Services Agreement will otherwise remain in full force apart from such provision which shall be deemed deleted.

No Waiver: Any delay or failure by us to enforce our rights under these Services T&Cs is not to be construed as a waiver of those rights.

Force Majeure: If the performance of these Services T&Cs or any obligations under the Agreement (except for the making of required payments) is prevented, restricted, or interfered with by reason of Force Majeure, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the promptly when the Force Majeure is removed.

Governing Law: These Services T&Cs are governed by the laws of Queensland and you submit to non-exclusive jurisdiction of the courts of Queensland, Australia.

10. INTERPRETATION

In these Services T&Cs, unless the context otherwise requires, capitalised terms have the meaning given out below, or as otherwise set out in these Services T&Cs, or another document forming part of the Agreement.

Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, future copyright, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information be kept confidential, and including the right to register such rights anywhere in the world, but does not include moral rights that are not transferable.

Loss means any direct or indirect cost, expense, debt, obligation, compensation, charge or liability of any kind (including loss of profits, damage to goodwill and loss of business opportunity) whether or not arising from a third party claim.

Minor means a person under the age of majority in their country of residence.

Order Form means the online or physical order form you completed to order the Services.

Privacy Law means any applicable privacy or data protection law (including those in any jurisdiction where the Services are provided, used or accessed) and all guidelines issued by the Office of the Australian Information Commissioner (and any similar regulatory body).

Privacy Policy means our privacy policy, as updated from time to time which you can find here: [link]

Respondent means a person who responds to an engagement or promotion created or used on or through our Site or the YomStar Platform.

Respondent Data means any customer data, information, responses or results or other data received in response to your engagement and any reports, results or other data created from it through the Site or the YomStar Platform.

Reward means any offer, discount, coupon or other benefit offered by you for completing an engagement or responding to a promotion.

Service Fee means the fees payable by you for the Services as outlined on the Order Form or as otherwise notified to you by us.

Service Specifications means the specifications of the Services as outlined on the Order Form, or as otherwise agreed.

Spam Act means the Spam Act 2003 (Cth) as amended from time to time.

Trade Promotion means any lottery or game of chance conducted with a view to promoting your goods or services or any other form of competition where the respondent is not guaranteed a prize, which is offered by you to a respondent in connection with the Services.

Yom Media Services means access to our third party audience channels for the purpose of distributing or otherwise communicating engagements to a specific market or demographic.

YomStar Platform means the YomStar Tools and YomStar Materials.

Yomstar Materials means any names, logos, trade marks (registered or unregistered), information, formats, designs templates for engagements, graphics and other content and material contained in the Yomstar Tools, on our Site or provided by us (and not by third parties), including any proprietary method provided by us which allows Respondents to initiate an engagement.

Yomstar T&Cs means the document entitled Yomstar Terms & Conditions which may form part of the Agreement if you are also receiving access to the YomStar Platform from us.

Yomstar Tools means the web based software, applications and other tools hosted by us on our Site which enable:

  1. the creation and transmission of engagements, rewards and trade promotions to Respondents;
  2. the provision of data, reporting and analytical procedures in relation to the responses and information received, and;
  3. any modification, development, adaption, enhancement, improvement, revisions, versions or updates of such software, applications and tools that we make available from time to time.
  4. Your Materials means any content, data, information, trade mark or other materials or documents in whatever form provided to us in connection with the Services, by you or on your behalf, including without limitation any text, Reward, Trade Promotion, survey, question, opinion, response, message, graphic, terms conditions and policies.

    Interpretation Principles: In this agreement, unless the contrary intention appears:

  5. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
  6. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
  7.   ‘including’ and similar words are not words of limitation;
  8. a reference to currency is to Australian currency; and
  9. to the extent of any inconsistencies between any parts of the Agreement, the Order Form will prevail.

Respondent/User Terms & Conditions

Welcome to YomStar.

In these Respondent Terms & Conditions (T&Cs), “we” or “us” means Yomstar Australia Pty Ltd (ACN 600 371 202) and “you” means a person who has decided to respond to an Engagement.

At Yomstar, we know how important your opinion is to businesses. Through our websites (including www.yomstar.com) (Site), we provide web-based software and tools to enable our clients to create cutting-edge engagements which are designed so that your opinions can be provided quickly and easily.  You may even be rewarded for your participation in an engagement.

When you access, interact with or respond to an engagement created by or on behalf of one of our clients (the Engagement Creator) you agree to be bound by these T&Cs.  These T&Cs apply to any information or data that you provide to us to access an engagement, or in response to, or otherwise in connection with an engagement (Data).  Our Privacy Policy will apply to the extent that you provide us with any personal information.

If you do not agree to these T&Cs, then you must not access, interact with or respond to an engagement.

The Engagement Creator may also require you to agree to their own terms and conditions and privacy policy before you respond to their engagement.  While these T&Cs govern your relationship with us, the Engagement Creator’s terms and conditions will govern your relationship with them.

Part 9 sets out the definitions that apply to these T&Cs.

1. YOUR RELATIONSHIP WITH US AND THE ENGAGEMENT CREATOR

Engagement Creator: When you access, interact with or respond to an engagement, you acknowledge and agree that the engagement and the fulfillment of any Reward or entry into a Competition is offered by and is the sole responsibility of the Engagement Creator.

Our relationship with the Engagement Creator: Our relationship with the Engagement Creator is governed by our agreement with them, which may include the Yomstar Terms and Conditions and/or the Services Terms and Conditions.  We recommend that you review these terms and conditions to gain a better understanding of our relationship with the Engagement Creator.  If you are concerned that an Engagement Creator may have breached our terms and conditions, or if you have any concerns generally about an Engagement Creator’s conduct, please contact us through our Support Page.  If we consider it appropriate, we may decide to take further action.

Our Role: Depending on our agreement with the Engagement Creator, our role may involve:

  1. designing the engagement;
  2. hosting the engagement;
  3. distributing the engagement (including via third parties);
  4. providing access to the engagement;
  5. administrative tasks related to the engagement;
  6.   receiving Data;
  7. hosting Data; and
  8. making Data available to the Engagement Creator.

Our relationship with you: The extent of our relationship with you is to distribute the engagement to you, host the engagement and collect and host your Data on behalf of the Engagement Creator.  Depending on our agreement with the Engagement Creator, we may also be responsible for distributing Rewards or facilitating Competitions on their behalf.  You acknowledge and agree that we have no liability or responsibility to you outside of this limited relationship.

Information: If you require any information or have any questions in relation to our role and responsibilities, please feel free to contact us through our Support Page.  If you require any information or have any questions about the a Reward or entry into a Competition that is being offered, please contact the Engagement Creator.

Our Engagements: From time to time, we may offer our own engagements.  In that case, we will be the Engagement Creator of that engagement..

2. YOUR CONDUCT AND OBLIGATIONS

Age: You are not eligible to and must not access, interact with or complete any engagement unless you are over the age of majority in your country of residence.

Compliance: You agree at all times to only access, interact with or respond to an engagement in accordance with:

  1. these T&Cs;
  2. any applicable laws and regulatory requirements (including, without limitation, the Privacy Laws, any applicable criminal laws, and any applicable laws and regulations relating to intellectual property, defamation, discrimination, vilification and obscenity); and
  3. any applicable third party terms and conditions (including those of the Engagement Creator), either forming part of the engagement, or as otherwise relating to your access to or interaction with the engagement and notified to you by us or the Engagement Creator.

Personal information: You warrant that any personal information provided to us is your own, or that you otherwise have the necessary consent to provide such information to us.

Participation: Unless otherwise provided for in the Engagement Creator’s terms and conditions (if applicable), you may only participate and submit responses to an engagement once.

Conduct: In accessing, interacting with or responding to an engagement, you must not:

  1. act unlawfully, fraudulently, dishonestly, inappropriately, mislead or deceive, or engage in improper behaviour of any kind;
  2. harass, abuse or harm any person;
  3. send unwelcome or unauthorised communications;
  4. infringe any rights or invade or violate the privacy of another person;
  5. impersonate another person, hide your identity or falsely represent an association with another person;
  6.   submit any Data which is false, inaccurate, misleading or deceptive, unlawful, defamatory, discriminatory, vilifying, pornographic or is otherwise inappropriate, indecent, inaccurate or objectionable, or for which you do not have the necessary rights or permission to use;
  7. interfere with, gain unauthorised access to, or disrupt the availability of the the Engagement or any of our software (including but not limited to any servers or networks connected with our Site); or
  8. upload or other transfer any material containing a bug, virus, trojan or similar malicious program or software to the Site.

Failure to comply: If you fail to comply with this Part 2, in additional to any other rights that we have under these T&Cs, we may decide to delete some or all of your Data, or terminate your access to any or a particular engagement (including any Reward or Competition).

3. YOUR LICENCE

Conduct: Provided you have agreed to and comply with these T&Cs, we grant you a limited, non-exclusive, non-transferable licence to access and complete the engagement (including any software or tool provided by us to allow you to access and use the engagement), and to submit your responses only.

Purpose: This licence is granted to you for the purpose of responding to the engagement in accordance with these T&Cs only.  You must not use the engagement (or any software provided by us) for any other purpose.

4. INTELLECTUAL PROPERTY

Engagement: You acknowledge that any and all Intellectual Property in the engagement (and any related software) remains the property of us and/or the Engagement Creator.  Aside from the permitted use under the licence granted in Part 3, you acquire no right, title or interest in or to engagement (or any related software) by virtue of these T&Cs.  You must not take any action, or assist any person to take any action that may jeopardise, limit, challenge or interfere with our ownership of or rights in the engagement or any related software.

Your Data: Upon providing your Data to us, you irrevocably assign and transfer all Intellectual Property in and to your Data to us.  You will not take any action against us in relation to any Intellectual Property rights existing in or relating to your Data once it has been provided to us, including any future use of such rights.

Waiver of Moral Rights: You agree not to enforce your Moral Rights (if any) in any responses provided to us, and you irrevocably, unconditionally and genuinely consent to us or the Engagement Creator using any Intellectual Property in any way which would, but for this waiver, constitute an infringement of any of your Moral Rights.

5. PRIVACY AND YOUR DATA

Use of Data: The Engagement Creator may access, download, export and use your Data at any time.  You acknowledge and agree that:

  1.   except where we are the Engagement Creator, we have no responsibility for or control over the Engagement Creator’s access to, or use of any Data;
  2.   we may use, exploit, copy, modify or disclose the Data (excluding personal information) for any purpose; and
  3. the Engagement Creator may (subject to the terms of its agreement with us) use, exploit, copy, modify or disclose the Data (excluding personal information) for any purpose.

Handling of personal information: We handle any of your personal information (as defined in the Privacy Law) in accordance with our Privacy Policy.

Use of personal information:  We may use your personal information to contact you in relation to the engagement (e.g. to facilitate a Reward or Competition), to contact you in relation to future engagements (provided you have consented to receiving future engagements) and as otherwise specified in the engagement and/or our Privacy Policy.

De-identified Data: You acknowledge and agree that we may use, copy, exploit, modify, disclose or licence data (which may include your Data) in an aggregate, de-identified form for any purpose.  You acknowledge our rights in de-identified data and agree not to take any steps or do any act that would interfere with such rights.

6. LIABILITY

Access to Engagements: We are not able to guarantee access to the Site or any particular engagement at all times. We will try to provide notice of any maintenance works but reserve our right to modify, suspend or discontinue access to the engagements and access to the Site for any reason and at any time. You acknowledge and agree that we will not be liable in relation to any periods of inaccessibility.

Use of Data: Except where we are the Engagement Creator, we are not liable for any use of your Data by the Engagement Creator.

Content of Engagement: Except where we are the Engagement Creator, you acknowledge and agree that we are not responsible or liable for the content of any engagements, including any representations or promises made, or for any content that is offensive, illegal, inappropriate or results in any harm or Loss to you.

Rewards and Competitions: Except as otherwise agreed by us, you acknowledge and agree that we are not responsible or liable for the fulfillment of any Reward or Competition.

No Warranties: You acknowledge and agree that our Site and any engagement may contain inaccuracies, errors, bugs or viruses. To the extent permitted by law, we do not warrant:

  1.   the accuracy, reliability or completeness of our Sites or any engagement or that they will be error, bug, virus free;
  2.  that an engagement will operate in combination with other software or any particular equipment, or other system, or will provide any function other than those as set out on our Site;
  3. that any content, Reward or Competition offered or provided to you either through our software or otherwise is accurate and correct, fit for purpose or complies with any particular law or regulation; or
  4. the accuracy, reliability or completeness of any information provided by us.

Limitation of implied warranties: All representations, warranties, terms and conditions which would otherwise be implied or imposed in these T&Cs are excluded to the maximum extent permissible by law (including, where permitted, any warranty with regard to merchantability, durability, fitness for purpose, or non-infringement of third party rights).

Limitation of Liability: Notwithstanding any other term of these T&Cs, to the maximum extent permitted by law:

  1. neither we nor our affiliates or our respective officers, employees, consultants or agents will be liable to you for any indirect, special or punitive, exemplary or consequential loss or damage, or for any loss of profit or business opportunity, any business interruption or loss of business information and data (even if we have been advised of possible damage) arising out of or relating to these T&Cs, your use or not being able to use the Site or a particular engagement, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise; and
  2. your sole remedy for any breach of these T&Cs by us is limited to termination.

Limitation of Prescribed Terms: Where by law we are unable to exclude any guarantee, warranty, representation, condition or other term or to limit our liability as set out above, but are entitled to limit it, then our liability to you under such terms is limited, at our discretion, to providing access to the engagement again or paying the cost of having the engagement supplied again or, if this is not permitted by law, then otherwise to the maximum extent permitted by applicable law.

Indemnity from you: You agree to hold harmless, defend, indemnify and release us and our affiliates and our respective officers, employees, consultants and agents from and against all claims, actions, proceedings and demands (including those brought by third parties), Loss and any other costs (including those incurred in satisfying, defending or settling such claim, proceedings or demand) of any nature arising out of or in connection with:

  1. any breach of these T&Cs;
  2. any breach by you of any applicable laws, regulations or third party terms and conditions notified to you by us or the Engagement Creator;
  3. any access to or use of our Site or an engagement and any Data originating from you or which relates to your use of the Site or an engagement; or
  4. anything that you provide to us under these T&Cs;

7. TERMINATION

Termination for convenience: We may terminate this agreement at any time immediately upon providing notice to you.

Termination for breach: If either you or we breach any term or warranty of these T&Cs, the non-breaching party may, in their sole discretion, decide to terminate this agreement.

Consequences of termination: In the event that this agreement is terminated for any reason, you will no longer be able to access, interact with or respond to any or all of the engagements.

Ban: If we consider that your breach is sufficiently serious, or if we detect that you have attempted to respond to an engagement more than the allowed number of times, we may ban you from participating in any or all engagements, and we may take appropriate steps to effect this (such as banning your IP address from accessing the Site).

8. GENERAL

Assignment: You may not assign or transfer your rights or obligations under these T&Cs unless with our prior written consent (which we may grant or withhold at our sole discretion).

Notices: All notices provided by you under these T&Cs must be provided to the email identified on the Support Page. All notices provided by us will be emailed to you at the email address that you provide to us when you respond to an Engagement, or posted on our Site.

Severance: If any provision of these T&Cs is held invalid, unenforceable or illegal for any reason, these T&Cs will otherwise remain in full force apart from such provision which shall be deemed deleted.

Survival: The following parts of these T&Cs survive termination or expiry:

  1. Part 4;
  2. Part 5; and
  3. Part 6.

No Waiver: Any delay or failure by us to enforce our rights under these T&Cs is not to be construed as a waiver of those rights.

Governing Law: These T&Cs are governed by the laws of Queensland and you submit to non-exclusive jurisdiction of the courts of Queensland, Australia.

9. Interpretation

Competition means any lottery or game of chance conducted with a view to promoting goods or services or any other form of competition where the respondent is not guaranteed a prize, which is offered to you by the Engagement Creator.

Data means any information provided to us as a result of your access or response to, or interaction with an Engagement or our Site.

Engagement means a survey or any other promotion created by the Engagement Creator using our web-based software and tools.

Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, future copyright, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information be kept confidential, and including the right to register such rights anywhere in the world, but does not include Moral Rights that are not transferable.

Loss means any direct or indirect cost, expense, debt, obligation, compensation, charge or liability of any kind (including loss of profits, damage to goodwill and loss of business opportunity) whether or not arising from a third party claim.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth).

Privacy Law means any applicable privacy or data protection law (including those in any jurisdiction where the Engagement or Site is provided, used or accessed) and all guidelines issued by the Office of the Australian Information Commissioner (and any similar regulatory body).

Reward means any offer, discount, coupon or other benefit offered by an Engagement Creator for completing an Engagement or responding to a promotion.