TERMS AND CONDITIONS

Welcome to ChoiceMetrics!

Thank you for visiting our terms and conditions (Terms), the most updated copy of which can always be found at www.choice-metrics.com (Website).  

We are ChoiceMetrics Pty Ltd, an Australian business with ABN 42 135 199 932 (‘ChoiceMetrics’, ‘we’, ‘our’ or ‘us’) and we provide a software tool to generate experimental designs for stated choice surveys known as Ngene as described on our Website (Software).

These Terms govern your access to the Software and us providing you any other goods and services as set out in these Terms (Subscription). Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website (Subscription Tier).

By clicking the “I accept these Terms” button on our Website, paying for your Subscription or otherwise accepting the benefit of any part of your Subscription, you agree to be bound by these Terms which form a binding contractual agreement between you the person acquiring a Subscription or the company you represent and are acquiring the Subscription on behalf of (‘you’ or ‘your’) and us.

Please note that your Subscription will continue for the duration of the Subscription Period (unless terminated earlier in accordance with these Terms). At the end of the Subscription Period your Subscription will automatically terminate, and your access to the Software will be limited, unless you renew your Subscription via our Website.  

We may change these Terms at any time by notifying you, and your continued use of the Solution following such an update will represent an agreement by you to be bound by the Terms as amended.

In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms. 

Please read these terms and conditions carefully before agreeing to proceed with your Subscription. 

1. ELIGIBILITY

   1. By accepting these Terms, you represent and warrant that:

      1. you have the legal capacity and authority to enter into a binding contract with us; and

      2. you are authorised to use the payment you provided when purchasing a Subscription.

   2. The Software is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Software. By using the Software, you represent and warrant that you are either:

      1. over the age of 18 years and accessing the Software for personal use; or 

      2. accessing the Software on behalf of someone under the age of 18 years old and consent to that person’s use of the Software.

   3. Please do not access the Software if you are under the age of 18 years old and do not have your parent or guardian’s consent, if you are under 16 or if you have previously been suspended or prohibited from using the Software. 

   4. If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Solution on behalf of a Represented Entity, you represent and warrant that you are authorised to do so. 

2. TERM

   1. Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continues for the Subscription Period, unless terminated earlier in accordance with clause 14.

   2. Upon expiration of the Subscription Period, this agreement will automatically terminate unless you renew your Subscription via our Website.

   3. At least two weeks prior to the expiry of the Subscription Period, we will provide you with advanced written notice of the agreement terms and instructions on how to renew your Subscription (Renewal Notice). Renewal of your subscription is optional, but if you do not have a valid Subscription in place you will not be able to access all of the Software.

3. THE SOLUTION

   1. YOUR SUBSCRIPTION AND THE SOLUTION

      1. We will provide you, to the extent described in your Subscription Tier, the Software and the Documentation (Solution).

      2. (Scope of Subscription) Your Subscription includes the benefits and limitations of your Subscription Tier as set out on our Website, or as otherwise communicated to you when you subscribe for your Subscription (and as amended from time to time by notice to you).

   2. ACCOUNTS

      1. (Accounts) To use the Solution, you may be required to sign-up, register and receive an account through the Website (an Account).

      2. (Provide Information) As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, profile information, payment details, ratings and reviews, and other information as determined by us from time to time.

      3. (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.

      4. (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.

      5. (Cancellation) We may, in our absolute discretion, suspend or cancel your Account for any reason, including for any failure by you to comply with these Terms.

   3. DISCLAIMER

      You acknowledge and agree that:

      1. any information provided to you as part of or in connection with the Software is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; and

      2. it is your responsibility to comply with applicable Laws relevant to your business, including industrial relations Laws and privacy Laws.

   4. SOFTWARE

      1. While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation for the Number of Solution Users. If your Subscription Tier on the Website does not specify a Number of Solution Users, your licence to use the Solution under this clause will be limited to one User (i.e., the Number of Solution Users will be one).

      2. We may from time to time, in our absolute discretion, release enhancements to the Software, meaning an upgraded, improved, modified or new versions of the Software (Enhancements). Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime. 

      3. We may change any features of the Solution at any time on notice to you.

   5. SUPPORT SERVICES

      We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services), the following terms apply unless otherwise specifically agreed in writing:

      1. we will take reasonable steps to provide Support Services where necessary. You must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control;

      2. requests for Support Services will be responded to on a best endeavours basis and we provide no guarantee of Support Services being available 24/7 or that any request for Support Services will be responded to within a particular time frame;

      3. you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Users to access and use the Software; and

      4. you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.

4. DATA HOSTING

   1. We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Services), subject to the following terms:

      1. (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.

      2. (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.

      3. (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

      4. (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

5. POSTED MATERIAL & THE FORUM

   1. WARRANTIES

      1. By providing or posting any information, Material or other content in connection with the Software or Website (Posted Material), you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:

         1. you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);

         2. the Posted Material is accurate and true at the time it is provided;

         3. any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;

         4. the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;

         5. the Posted Material is free from any material that may harm our reputation or that of associated or interested parties;

         6. the Posted Material is not “passing off” of any product or service and does not constitute unfair competition; 

         7. the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;

         8. the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution, the Website or any network or system; and

         9. the Posted Material does not breach or infringe any applicable Laws.

   2. LICENCE

      1. You grant, and must ensure that all Users grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.

      2. If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.

      3. You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Posted Material infringes any third party’s Intellectual Property Rights.

   3. REMOVAL

      1. The Software and our Website may act as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material. However, we may, in our absolute discretion, review and remove any Posted Material from the Solution or Website at any time without giving any explanation or justification for removing the Posted Material, including if we determine that the Posted Material infringes a third party’s Intellectual Property Rights, or is reasonably likely to.

      2. You agree that you are responsible for keeping and maintaining records of Posted Material.

   4. INFRINGING CONTENT ON THE SOFTWARE

      1. If you become aware of Posted Material, or other Material, on the Software or Website that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please contact us immediately on the ‘contact’ section of our Website, accessible here: [https://choice-metrics.com/contact.html#enquiries]

      2. If you submit a complaint on our Website under clause 5.4(a):

         1. you warrant that the substance of the complaint is accurate, true and involves infringement of copyright;

         2. you acknowledge and agree that groundless threats of legal proceedings in relation to copyright infringement may be prohibited under applicable law (for example, Australia’s Copyright Act 1968, or equivalent laws wherever you are located); and

         3. you agree to indemnify ChoiceMetrics in relation to any loss or damage that may arise in relation to your complaint, including in relation to any third party claim that the complaint contains a groundless threat.

   5. DISCLAIMER

      1. As part of the forum or otherwise on our Website or in the Solution, we or other Users may provide recommendations or suggestions, this is not to be taken as professional advice and should not be relied on as such. 

      2. All information provided by us is general information, as it’s not tailored to you or your specific needs. This includes information that is provided by us:

         1. on our Website;

         2. as part of the Solution; or

         3. provided by our personnel via any other website, via email or over the phone.                    
6. CLIENT OBLIGATIONS

   You agree to:

   1. 1. provide us with all documentation, information and assistance reasonably required by us to provide you with the Solution and any associated services; and

      2. provide us with access to any third party or other accounts used by you as is reasonably required by us to supply the Solution and perform the services contemplated by these Terms.

   2. CLIENT MATERIAL

      1. You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Solution is complete, accurate and up-to-date.

      2. You release us from all liability in relation to any loss or damage arising out of or in connection with the Solution, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.

   3. YOUR OBLIGATIONS

      1. You must, and must ensure that all Users, comply with these Terms (including the EULA) at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense. 

      2. You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:

         1. upload sensitive information or commercial secrets using the Software;

         2. upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;

         3. use the Software for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes;

         4. upload any material that is owned or copyrighted by a third party; 

         5. make copies of the Documentation or the Software;

         6. adapt, modify or tamper in any way with the Software;

         7. remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;

         8. act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Software;

         9. use the Software in a way which infringes the Intellectual Property Rights of any third party;

         10. create derivative works from or translate the Software or Documentation;

         11. publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;

         12. integrate the Software with third party data or Software, or make additions or changes to the Software, (including by incorporating APIs into the Software) other than integrating in accordance with any Documentation or instructions provided by us in writing; 

         13. intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Software;

         14. sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party, other than granting a User access as permitted under these Terms;

         15. decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;

         16. share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Solution’s security;

         17. use the Solution for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);

         18. make any automated use of the Solution and you must not copy, reproduce, translate, adapt, vary or modify the Solution without our express written consent; 

         19. attempt to circumvent any technological protection mechanism or other security feature of the Software; or

         20. permit any use of the Solution in addition to the Number of Solution Users.

      3. If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.

      4. You agree, and you must ensure that all Users agree:

         1. to comply with each of your obligations in these Terms;

         2. to sign up for an Account in order to use the Solution;

         3. that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and

         4. that we may cancel your, or any User’s, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 5.
7. FEES AND PAYMENT

   1. FREE VERSION

      1. We may from time to time offer a limited, free version of the Solution (Free Version)

      2. Where we grant you a Free Version, no payments will be due for your use of the Free Version. 

   2. SUBSCRIPTION FEES

      1. You must pay subscription fees to us in the amounts specified on the Website for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees). 

      2. All Subscription Fees must be paid in advance and are non-refundable for change of mind.

      3. Unless otherwise agreed in writing, the Subscription Fees are due and payable at the start of your Subscription, with payment being due on the first day of the Subscription Period.

   3. LATE PAYMENTS

      1. We reserve the right to suspend all or part of the Solution indefinitely if you fail to pay any Fees in accordance with this clause 7.

   4. GST

      1. Unless otherwise indicated, the Fees do not include GST (as defined under  A New Tax System (Goods And Services Tax) Act 1999 (Cth). In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

   5. CARD SURCHARGES

      1. We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

   6. ONLINE PAYMENT PARTNER

      1. We may use third-party online payment partner, currently Stripe (Online Payment Partner) to collect Subscription Fees. 

      2. The processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner. 

      3. You agree to release us and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment.

      4. We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment. 

8. INTELLECTUAL PROPERTY AND DATA

   1. SOFTWARE CONTENT INTELLECTUAL PROPERTY

      1. (Our ownership) We retain ownership of all Materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Software Content not expressly granted to you.

      2. (Licence to you) You are granted a licence to the Software Content, for the Number of Solution Users, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.

   2. USER DATA

      Our Rights and Obligations

      1. You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use User Data to the extent reasonably required to provide the Solution, and for our internal business purposes, including to improve the Solution and our other products and services, and including to apply machine learning and other analytics processes to the User Data, to gain commercial insights and other associated learnings, and to improve the Solution, our business and our other products and services.

      2. We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.

         Your Obligations and Grant of Licence to Us

         3. You are responsible for ensuring that:

            1. you share User Data only with intended recipients; and

            2. all User Data is appropriate and not in contravention of these Terms. 

         4. You:

            1. warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and 

            2. indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

9. THIRD PARTY SOFTWARE, TERMS & CONDITIONS

   1. THIRD PARTY TERMS

      1. You acknowledge and agree that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to your use of the Solution from time to time.

      2. You agree to any Third Party Terms applicable to third party goods and services that are used in providing the Solution to you, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

      3. We will take reasonable steps to notify you of Third Party Terms that apply to the Solution, you must immediately notify us if you do not agree to such Third Party Terms.

      4. You acknowledge and agree that if you do not agree to any Third Party Terms, this may affect our ability to provide you the Solution and we will not be liable for any issues in providing you the Solution where you do not agree to any Third Party Terms.

   2. THIRD PARTY SOFTWARE INTEGRATIONS 

      1. You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay. 

      2. You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if you integrate it with third party software, or change or augment the Software, including by making additions or changes to the Software code, and including by incorporating APIs into the Software.

      3. If you add third party software or software code to the Software, integrate the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:

         1. you acknowledge and agree that User Software Changes can have adverse effects on the Solution, including the Software;

         2. you will indemnify us in relation to any loss or damage that arises in connection with the User Software Changes;

         3. we will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Software Change;

         4. we may require you to change or remove User Software Changes, at our discretion, and if we do so, you must act promptly;

         5. we may suspend your access to the Solution until you have changed or removed User Software Change; and/or

         6. we may change or remove any User Software Change, in our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Software Change.

10. CONFIDENTIALITY

    1. Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent. 

    2. Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.

    3. The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation. 

11. PRIVACY 

    1. We collect personal information about you in the course of providing you with the Solution, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at [Terms and Conditions]. 

    2. Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information. 

    3. By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

12. LIABILITY

    1. WARRANTIES AND LIMITATIONS

       1. (Warranties) We warrant that:

          1. during the Subscription Period, the Software will perform substantially in accordance with the Documentation;

          2. during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and

          3. to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.

       2. (Errors) We will correct any errors, bugs or defects in the Software which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:

          1. result from the interaction of the Software with any other solution or computer hardware, software or services not approved in writing by us;

          2. result from any misuse of the Software; or

          3. result from the use of the Software by you other than in accordance with these Terms or the Documentation.

       3. (Service Limitations) The Solution is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:

          1. the Solution will be free from errors or defects;

          2. the Solution will be accessible at all times;

          3. messages sent through the Solution will be delivered promptly, or delivered at all;

          4. information you receive or supply through the Solution will be secure or confidential; or

          5. any information provided through the Solution is accurate or true.

       4. (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded. 

       5. (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

    2. LIMITATION OF LIABILITY

       1. (Limitation of liability) To the maximum extent permitted by applicable law, our maximum aggregate liability to you in respect of loss or damage sustained by you under or in connection with these Terms or the Solution is limited to the total Fees paid to us by you in the 6 months preceding the first event giving rise to the relevant liability.

       2. (Indemnity) You agree at all times to indemnify and hold harmless ChoiceMetrics and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by you or you officers’, employees’ or agents’:

          1. breach of any of these Terms; or

          2. negligent, fraudulent or criminal act or omission.

       3. (Consequential loss) We will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these Terms or any goods or services provided by us, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.

13. UPGRADE SUBSCRIPTION TIER

    You may notify us that you would like to upgrade your Subscription Tier or the Number of Solution Users at any time. If you do, subject to your paying the new, relevant Subscription Fees on a pro rata basis for the remainder of the Subscription Period up front, we will take reasonable steps to promptly provide you with access to the new Subscription Tier or the additional Number of Solution Users.

14. CANCELLATION AND TERMINATION

    1. CANCELLATION BY US

       1. We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you, at any time for any reason, including if:

          1. you, a member of your Personnel, or a User, are in breach of any term of these Terms; or

          2. you become subject to any form of insolvency or bankruptcy administration.

       2. If we terminate these Terms under this clause 14, in circumstances where you have not breached any of these Terms, we will issue you with a refund of a pro-rata amount of the remainder of the current Subscription of Renewal Period’s Subscription Fee in which you will not have access to your Subscription.

    2. CANCELLING YOUR SUBSCRIPTION

       1. You may cancel your Subscription for convenience at any time by notice to us. The termination of your Subscription will take effect at the end of the then current Subscription Period (Cancellation Period). 

       2. Any Subscription Fees that would otherwise have been payable during the Cancellation Period will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid for the Cancellation Period will be refundable.  

       3. We will continue to provide you the Solution during the Cancellation Period (including your licence to the Software) and you may retrieve any necessary User Data during this time. 

    3. TERMINATION FOR CAUSE

       1. If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party the nature and details of the Breach.

       2. The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).

       3. After the Rectification Period, the Notifying Party will notify the other party that:

          1. where the Breach has been successfully rectified, that the agreement will continue; or

          2. where the Breach has not been successfully rectified, that this agreement is terminated (Termination for Breach Notice).

       4. Following a Termination for Breach Notice:

          1. your Subscription will immediately terminate and you and your Users will no longer have access to the Solution, User Data or your Account; and

          2. if you are the Notifying Party, no further fees will be payable by you (unless later found that such termination was invalid).

    4. Other Consequences for TERMINATION

       1. Upon termination of these Terms you will no longer have access to the Software, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data. You release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point.

       2. Notwithstanding termination or expiry of your Account, this agreement and any provisions of these Terms which by its nature would reasonably be expected to survive after termination or expiry, will continue to apply.

15. DISPUTE RESOLUTION

    1. A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

    2. A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

    3. Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

16. FORCE MAJEURE

    1. We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event. 

    2. If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:

       1. reasonable details of the Force Majeure Event; and

       2. so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.

    3. Subject to compliance with clause 16(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

    4. For the purposes of this agreement, a ‘Force Majeure Event’ means any:

       1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

       2. strikes or other industrial action outside of the control of us; 

       3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

       4. any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

17. NOTICES

    1. A notice or other communication to a party under these Terms must be:

       1. in writing and in English; and

       2. delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

    2. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

       1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or

       2. when replied to by the other party,

    whichever is earlier.

18. GENERAL

    1. GOVERNING LAW AND JURISDICTION

       1. This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

    2. WAIVER

       1. No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

    3. SEVERANCE

       1. Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

    4. JOINT AND SEVERAL LIABILITY

       1. An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

    5. ASSIGNMENT

       1. A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

    6. ENTIRE AGREEMENT

       1. This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

    7. INTERPRETATION

       1. (singular and plural) words in the singular includes the plural (and vice versa);

       2. (currency) a reference to $; or “dollar” is to US dollar currency;

       3. (gender) words indicating a gender includes the corresponding words of any other gender;

       4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

       5. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

       6. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

       7. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

       8. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

       9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;

       10. (includes) the word “includes” and similar words in any form is not a word of limitation; and

       11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

DEFINITIONS

End User Licence Agreement

1. APPLICABILITY AND DEEMED ACCEPTANCE

   1. This EULA applies to any End Users of the Software. You agree to, and will be deemed to have accepted, this EULA when you access the Software. 

   2. By accessing the Software, you irrevocably consent to the terms of this EULA and represent and warrant that you will comply with the scope and restrictions of this End User Licence to the Software provided under this EULA. If you do not accept this EULA, you must not access, use or otherwise view the Software.

   3. This EULA commences on the date the Software are provided to you and will end when written notice is provided to you.

2. USE OF SOFTWARE

   1. GRANT OF LICENCE

      1. You are granted a revocable, worldwide, royalty-free licence to use the Software for the Purpose.

      2. You must only use the Licenced Materials:

         1. in accordance with the limitations of the Purpose; 

         2. in a manner that is consistent and compliant with clause 3.2; and

         3. in compliance with any other restrictions notified to you in writing by the Licensee or ChoiceMetrics from time to time.

   2. RESTRICTIONS ON LICENCE

      Except in accordance with clause 3.1(b), you must not, without prior written approval from the Licensee or ChoiceMetrics in their absolute discretion:

      1. make copies of the documentation or the Software;

      2. provide the Software to any third party;

      3. adapt, modify or tamper in any way with the Software, other than within the approved scope of use of the Software;

      4. remove or alter any copyright, trade mark or other notice on or forming part of the Software or documentation;

      5. create derivative works from or translate the Software or documentation, other than for your own personal use only;

      6. publish or otherwise communicate the Software or documentation to the public, including by making it available online or sharing it with third parties;

      7. sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or documentation to any third party;

      8. decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code; 

      9. attempt to circumvent any technological protection mechanism or other security feature of the Software.

      3. LIMITATIONS OF SOFTWARE

         ChoiceMetrics does not guarantee, and make no warranties, to the extent permitted by law, that:

         1. the Software will be free from errors or defects;

         2. the Software will be accessible or available at all times; or

         3. any information provided through the Software is accurate or true.

      4. FAIR USE

         The Software is subject to a “fair use policy”, under which you must not use the Software in a way that a reasonable person would consider to be unreasonable, including without limitation running central processing unit (CPU) and memory intensive tasks that run in excess of 16 hours. We reserve the right to determine whether the fair use policy has been breached and inform you that you have exhausted your use of the Software for the relevant calendar month. 

   3. DISCLAIMERS 

      1. ChoiceMetrics does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of the Software.  

      2. You must take your own precautions to ensure that the process which you employ for accessing the Software does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

      3. To the maximum extent permitted by applicable law, we limit all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Software to $100 (AUD) in aggregate. This includes the transmission of any computer virus.

      4. You indemnify ChoiceMetrics and its employees, agents and contractors (Personnel) in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, your use of the Software or breach of this EULA (or both, as the case may be).

      5. You acknowledge and agree that ChoiceMetrics will have no liability for any act or omission by you which results in or contributes to damage, loss or expense suffered by you or another user in connection with the use of the Software and indemnify ChoiceMetrics for any such damage, loss or expense. 

      6. All express or implied representations and warranties given by ChoiceMetrics or its Personnel are, to the maximum extent permitted by applicable law, excluded. Where any law implies a condition, warranty or guarantee into this EULA which may not lawfully be excluded, then to the maximum extent permitted by applicable law, our (and our Personnel’s) liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to:

         1. in the case of goods, their replacement or the supply of equivalent goods or their repair; and

         2. in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

      7. To the maximum extent permitted under applicable law, including the Competition and Consumer Act 2010 (Cth), under no circumstances will ChoiceMetrics or its Personnel be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Software, this EULA or their subject matter.

   4. TERMINATION

      1. AUTOMATIC TERMINATION 

         This agreement will be automatically terminated, and your licence to the Software will be immediately revoked, if the Head Agreement expires or is terminated. 

      2. TERMINATION BY CHOICEMETRICS OR LICENSEE

         ChoiceMetrics or the Licensee (or both) may terminate this agreement immediately by notice to you (as an individual user, without terminating the Head Agreement) if:

         1. you are in breach of any term of this agreement and have failed to remedy the breach within 10 Business Days after the notice; or

         2. you commit, or ChoiceMetrics or the Licensee reasonably suspects that you may commit, any breach of this agreement including, without limitation, clause 3.

      3. EFFECT OF EXPIRY OR TERMINATION

         1. In the event of expiry or termination of this EULA, you must:

            1. immediately cease using the Software; and

            2. remove the Software from all materials in your care, custody or control that feature the Software, and, if the Software cannot be removed, then at ChoiceMetrics’s option, return or destroy all such material.

         2. Termination of this agreement will not affect any rights accruing to either party to the date of termination nor any obligation performed to the date of termination or any obligation which expressly or impliedly survives termination of this agreement.

      4. YOUR DATA ON TERMINATION 

         You are solely responsible for removing any information you store in the Licensed Material prior to termination of this agreement. ChoiceMetrics will not be liable to you for any loss of your or any other user’s data or information upon termination of this agreement. 

   5. GENERAL

      1. GOVERNING LAW AND JURISDICTION

         This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

      2. WAIVER

         No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

      3. FURTHER ACTS AND DOCUMENTS

         Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.

      4. ASSIGNMENT

         You can’t assign, novate or otherwise transfer your rights or obligations under this agreement without ChoiceMetrics’s prior consent.

      5. ENTIRE AGREEMENT

         This agreement embodies the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

KEY TERMS