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TERMS AND CONDITIONS
Welcome to StackMarks. We provide advanced analytics as a service to level up campaign user insights via our software tools, portal and app, StackMarks, as described on our Website (Software).
We are Noble Five Pty Ltd, an Australian business with ABN 45 617 693 099 trading as “StackMarks” (‘we’, ‘our’ or ‘us’). These terms and conditions (Terms) govern your access to the Software and us providing you any other goods and services as set out in these Terms (Subscription). You can view the most updated version of our Terms at https://www.stackmarks.com/terms-of-use (Website). Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website and during the Onboarding Steps (Subscription Tier).
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 14. Please ensure you contact us if you want to cancel your Subscription.
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 READING AND ACCEPTING THESE TERMS
(a) 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.
(b) 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.
(c) 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.
2 ELIGIBILITY
3 DURATION OF YOUR SUBSCRIPTION
(a) These Terms commence on the date you agree to be bound by them (as set out at the beginning of these Terms). Your Subscription commences on the date agreed by us after completing the Onboarding Steps and continues for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 14.
(b) Subject to clause 3(c), upon expiration of the Subscription Period, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to the Subscription Period (Renewal Period).
(c) This agreement will not automatically renew on expiry of the Subscription or Renewal Period (Renewal Date), if you use the unsubscribe functionality on the Portal or Website prior to the Renewal Date.
(d) Where you have chosen an annual Subscription Period or Renewal Period, at least 30 days prior to the expiry of the Renewal Date, we will provide you with advanced written notice of the agreement renewing and any applicable changes to the Subscription Fees or these Terms (Renewal Notice).
4.1 SCOPE OF YOUR SUBSCRIPTION AND THE SOLUTION
(a) We will provide you, to the extent described in your Subscription Tier, the Software, the Portal and the Documentation (Solution).
(b) Your Subscription includes the benefits, inclusions, and limitations of your Subscription Tier as set out on our Website, including the number of Workspaces or Report Types included with your Subscription (Subscription Inclusions), or as otherwise communicated to you when you subscribe for your Subscription (and as amended from time to time by notice to you).
4.2 ACCOUNTS
(a) (Accounts) To use the Solution, each User will be required to sign-up, register and receive an account through the Portal (or Website) (an Account).
(b) (Provide Information) As part of the Account registration process and as part of your continued use of the Software, 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, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time.
(c) (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.
(d) (Agency Account) If you sign up for an agency account (Agency Account), you acknowledge and agree that you, and any User you allow use the Agency Account will be able to see Reports for multiple brands or clients connected to that Agency Account. Any User of the Agency Account will have the ability to share Reports with others Users who are provided access to the Software by the Client Administrator. The Client Administrator and each User of the Agency Account are responsible for ensuring that the permission settings within the Agency Account to ensure the correct clients can access their Reports (except where we agree to manage permission settings on your behalf, in which case you warrant that we will not be responsible for errors in information you provide to us which we rely upon to adjust your permission settings).
(e) (Brand Account) If you sign up for a brand-only account (Brand Account), you will only be able to access Reports related to the brand attached to that Brand Account as well as any custom metrics or unified reports which we agree to provide as part of your Subscription. Additional fees may be payable in connection with any Professional Services requested pursuant to clause 5. You may invite Agency Account Users to access Reports connected to your Brand Account.
(f) (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Software and provide you with an Account.
(a) Before commencing your Subscription, you must complete the onboarding and set-up process (Onboarding Steps) and pay the one-time setup fees (Onboarding Fee) set out on the Website or as otherwise communicated to you by us prior to being granted access to the Solution. Depending on your requirements, the Onboarding Steps may include:
(i) completing an order form specifying your company details (name, relationships, Integrated Channel requirements, and Meta Business ID);
(ii) paying the Onboarding Fee prior to us actioning the Onboarding Steps and providing you access to the Solution; and
(iii) granting us access via the relevant Integrated Channel and providing us with any other information necessary for us to work with the Integrated Channel in order to integrate it with the Solution.
(b) By using the Solution, you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:
(i) you are authorised to use the Software and provide any User Data;
(ii) any User Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(iii) the User Data is free from any material that may harm our reputation or that of associated or interested parties;
(iv) the User Data 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;
(v) the User Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
(vi) the User Data does not breach or infringe any applicable Laws.
4.4 REPORTS & DISCLAIMERS
Using the Solution, Users will be able to generate the Reports included in their Subscription Tier. By generating the Reports, each User acknowledges and agrees to the disclaimers and limitations, set out in this clause.
(a) (Data Sources) The Solution generates the Reports using Channel Data that may also include Brand First Party Data which is matched in data clean rooms hosted by Integrated Channels (Matched Data) and our Software Content (defined in clause 9.1(a)). While we strive to ensure the highest level of accuracy, errors may occur due to the inherent limitations of information of these data sources. We do not warrant or guarantee the accuracy, completeness, or reliability of any Report or other information provided by the Software. Users acknowledge and agree that any reliance on any Reports from the Software is at their own risk.
(b) (AI Enrichment) You acknowledge and agree that the Solution may utilise advanced algorithms and machine learning techniques to provide you additional insights, including but not limited to, machine learning, predictive analytics, content generation and data automation, based on inputs made by Users (AI Enrichment). You may choose to disable AI Enrichment using the functionality provided in the Software.
(c) (Data Visualisation Only) We provide a Report which is a data visualisation of underlying Channel Data and Matched Data. You acknowledge and agree that any information provided to you as part of or in connection with the Solution and any Report is intended to be general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice.
(d) (Integrated Channels) You acknowledge and agree that because the Reports are produced based on Channel Data provided by Integrated Channels, if an Integrated Channel restricts your access or our access to that information or data, the Reports may be affected. We will not be responsible for the actions of any Integrated Channels and you will not be entitled to a refund on any Fees paid if your access or our access to an Integrated Channel is terminated for any reason.
(e) (No Guaranteed Outcome) You acknowledge and agree that we cannot guarantee that by any Report, you (or any User) will achieve a particular result or decision (including any third party decision). Any such outcomes are subject to factors beyond our control. Before relying on any Report, you have conducted your own independent assessment and evaluations in accordance with your business needs.
(f) (Report Review) You must ensure that you (and each User) reviews each Report independently to confirm that it is in a form which is suitable for your purposes before using that Report. We shall not be held liable for any errors, omissions, or damages arising from the use of the Solution or reliance on a Report, including but not limited to financial losses, loss of business opportunities, or reputational damage.
(g) (No Responsibility) By using our Solution, you acknowledge that errors may occur and accept the risk associated with potential inaccuracies. We will not be responsible or liable for any inaccurate, fraudulent or otherwise incorrect information provided to us by any User, any Integrated Channel, or any user of an Integrated Channel. You agree to hold us harmless and indemnify us from any claims, liabilities, losses, or expenses arising out of or related to the use of our Software or reliance on any Reports.
(h) (Compliance With Laws) It is your responsibility to comply with applicable Laws relevant to your business, including industrial relations Laws and privacy Laws.
4.5 SOFTWARE
(a) (Licence) While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation for the Report Types. While your Subscription is active, you can access the Reports included with your Subscription If you cancel your Subscription, you will lose access to your Reports.
(b) (Enhancements) 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.
(c) (Changes) We may change any features of the Solution at any time on notice to you.
(d) (Fair Use) The use of the Software by you (and any User) is subject to fair and reasonable usage in accordance with our Fair Use Policy set out on our Website from time to time. If you use the Software in any way which is contrary to the Fair Use Policy, we may limit your access to the Software or specific features within the Software.
4.6 SUPPORT SERVICES
We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing:
(a) 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);
(b) we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;
(c) where particular service levels are set out on our Website or the Portal (Service Levels), Service Levels are indicative and if we are not able to meet a Service Level, for any reason, you will not have any claim for loss arising from any delay and we will use its best endeavours to respond to or resolve the relevant issue as soon as possible;
(d) 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
(e) you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
5 PROFESSIONAL SERVICES
5.1 WORK ORDER
(a) While you have an active Subscription, you may also directly request that we provide additional professional services which fall outside the scope of your Subscription Tier inclusions including, but not limited to, custom metrics, custom reporting solutions, unified reporting, platform & technology projects, and cleaning up Brand First Party Data (Professional Services).
(b) Upon receiving a request for Professional Services, we will provide you with a proposed Work Order setting out the scope of work and additional fees payable for your approval. If the Work Order is approved, we will provide the Professional Services in accordance with the agreed scope.
(c) You acknowledge and agree that:
(i) we are not obliged to commence providing the Professional Services until any additional Fees have been paid (or an alternative payment arrangement has been agreed between the parties); and
(ii) the additional Fees payable in connection with Professional Services may include a combination of both one-time fees calculated on an hourly basis (e.g. building a unified report from multiple sources of Channel Data) and an increase to your Subscription Fees to maintain any additions made to the Solution or custom Reports as part of the Professional Services (e.g. ongoing access to a unified report).
(d) You acknowledge and agree that, unless otherwise specifically states, any additional Fees for Professional Services are non-refundable and payable in addition to your Subscription Fees notwithstanding that you may not have used all of your Subscription Inclusions for your Subscription at the time that the Professional Services are requested.
5.2 ACCESS TO BRAND FIRST PARTY DATA
Where the Professional Services include services related to the Brand First Party Data (e.g. cleaning up Brand First Party Data), you must provide us access to the relevant Brand First Party Data (including access to Brand First Party Data hosted on a third party channel or platform) and any other documentation, information, or assistance reasonably necessary to perform the Professional Services.
5.3 CHANGE IN SCOPE
(a) Where there is an approved Work Order, you may be required to pay a “change in scope fee in an amount reasonably determined by us (Change Fee) for additional Professional Services which alter the scope set out in the relevant Work Order and require us to perform additional work or incur additional costs (Changes).
(b) Unless otherwise agreed in writing, we may at our discretion extend or modify any delivery schedule or deadlines for the Professional Services as may be reasonably required by such Changes.
(c) We will only be required to perform Changes, if:
(i) we agree in writing to perform the Changes;
(ii) you pay the Change Fee, in accordance with clause 8.
5.4 CUSTOMISATIONS
(a) You acknowledge and agree that where the Professional Services include specific customisations to Reports or integrations within your existing IT systems or the systems of a third party (Customisations):
(i) we do not guarantee or warrant that any Customisations are possible or will function correctly within your existing IT systems;
(ii) we will not be liable for the functionality of the Software if any Customisation requested requires integration of the Software with any third party software or where any failure is cause or contributed to by any third party software or hardware; and
(iii) the Customisation Fees set out in a proposed scope are indicative only and the Customisation Fees to be paid for any particular Customisation will depend on the time and resources spent by us in implementing the Customisation in accordance with the agreed scope.
(b) Any Customisations to the Solution or the Software Content vests in us in accordance with clause 9.
We will store User Data that you upload to the Software and Reports generated using the Software using a third party hosting service selected by us (Hosting Services), subject to the following terms:
(a) (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.
(b) (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 or Reports will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that User Data and Reports are 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.
(d) (backups & disaster recovery) In the event that User Data or Reports are 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.
(e) (data clean rooms) All Channel Data remains held and controlled by the relevant Integrated Channels at all times in data clean rooms. You acknowledge and agree that we have no direct access or control over individually identifiable personal information .
7.1 GENERAL OBLIGATIONS
You agree to:
(a) provide us with all documentation, information and assistance reasonably required by us to provide you functional access with the Solution; and
(b) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to provide you to functional access the Solution.
7.2 CLIENT MATERIAL
(a) 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.
(b) 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.
7.3 CLIENT ADMINISTRATOR
(a) You acknowledge and agree that, where your Account and Subscription Tier includes access to the Solution for multiple Users, the Client Administrator is responsible for:
(i) the management of the account settings which apply to those Users, including, without limitation, sending access invitations to Users, restricting or granting permissions to Users, and grouping of Users; and
(ii) providing relevant credentials to allow for any User Integrations in accordance with clause 9.4,
(Account Settings)
(b) By accepting the appointment as Client Administrator, the Client Administrator agrees to comply with these Terms and accepts all responsibility for changes to Account Settings and we will not be liable for any loss or damage arising from any unauthorised or improper changes or the Client Administrator’s management of Account Settings.
7.4 YOUR OBLIGATIONS
(a) You must, and must ensure that all Users, comply with these Terms (and any End User Licence Agreement) 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.
(b) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(i) upload sensitive information or commercial secrets using the Software;
(ii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(iii) 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;
(iv) submit any User Data or otherwise upload any material that is owned or copyrighted by a third party;
(v) make copies of the Documentation or the Software;
(vi) adapt, modify or tamper in any way with the Software;
(vii) remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
(viii) 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;
(ix) use the Software in a way which infringes the Intellectual Property Rights of any third party;
(x) create derivative works from or translate the Software or Documentation;
(xi) publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(xvi) 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;
(xvii) 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);
(xviii) 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;
(xix) attempt to circumvent any technological protection mechanism or other security feature of the Software; or
(xx) permit any use of the Solution in excess of the Report Types or Subscription Inclusions.
(c) 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.
(d) You agree, and you must ensure that all Users agree:
(i) to comply with each of your obligations in these Terms;
(ii) to sign up for an Account in order to use the Solution;
(iii) 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
(iv) 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 7.
(a) 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), and any other fees payable under these Terms or as otherwise agreed between us from time to time including in accordance with clause 5 (Fees).
(b) Unless otherwise specified, all Fees must be paid in advance and are non-refundable for change of mind.
(c) Unless otherwise agreed in writing, the Subscription Fees are due and payable on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period and at the beginning of every Renewal Period thereafter.
8.2 AUTOMATIC RECURRING BILLING
Subject to clause 8.3:
(a) Your Subscription will continue to renew on an automatic indefinite basis unless you notify us that you wish to cancel in accordance with this clause 8.
(b) While your Subscription is maintained, your Subscription Fees will continue to be debited at the beginning of each Renewal Period from the payment method you nominated when you registered for an Account.
(c) By signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.
8.3 CHANGES TO SUBSCRIPTION FEES
We may, from time to time, change our Subscription Fees and provide you with at least 10 Business Days’ notice prior to the changes. During this time, you have the opportunity to cancel your Subscription with us. If you do not cancel your Subscription, the new Subscription Fees will effect at the start of your next Renewal Period.
8.4 LATE PAYMENTS
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 8.
8.5 GST
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
8.6 CARD SURCHARGES
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).
8.7 ONLINE PAYMENT PARTNER
(i) 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, which can be found here: https://stripe.com/au/legal/consumer.
(ii) you 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; and
(iii) We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment.
(b) You have the right to reject any terms and conditions of the Online Payment Partner. If you reject those terms, we cannot provide you with the Subscription and clause 14 will apply.
9 INTELLECTUAL PROPERTY AND DATA
9.1 SOFTWARE CONTENT INTELLECTUAL PROPERTY
(a) (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), any prompts or procedures used by us to produce the Reports or perform the Professional Services, and any improvements made to the Software or new Materials created as part of any Professional Services (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. To the extent that any User Data is incorporated in a Report, you grant us a perpetual, non-exclusive, royalty-free, transferable, worldwide and irrevocable licence to use that User Data.
(b) (Licence to you) You are granted a licence to the Software Content, for the Report Types and Subscription Inclusions, 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 and any other purposes set out on our Website. 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.
User Data
(a) You retain all rights in any User Data uploaded to the Software, or otherwise provided to us in connection with this agreement, before it is processed by the Software to produce a Report. We retain ownership of all Reports generated using the Software and you are granted a licence to use those Reports in accordance with these clause 9.1(b).
Channel Data
(b) You acknowledge and agree the relevant Channel Data is owned by the relevant Integrated Channel and neither we or you have any claim of ownership over that Channel Data. Any use of the Channel Data is under licence between the relevant user and the Integrated Channel and subject to the terms and conditions of use of that Integrated Channel and Channel Data
Brand First Party Data
(c) You acknowledge and agree that:
(i) Brand First Party Data remains owned by the relevant brands or businesses connected to the Account;
(ii) notwithstanding that we may be provided with access to your Brand First Party Data to perform Professional Services in accordance with clause 5, we claim no ownership over the Brand First Party Data; and
(iii) we retain ownership of any processes, procedures, prompts or other Intellectual Property Rights used in the Professional Services performed in connection with your Brand First Party Data.
Our Rights and Obligations
(d) In addition to any licence granted to use under clause 9.1(a), you grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use User Data and Brand First Party Data to the extent reasonably required to provide the Solution or provide the Professional Services, or to the extent that it is incorporated into the Reports, 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.
(e) 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
(f) You are responsible for ensuring that:
(i) you share User Data only with intended recipients; and
(ii) all User Data is appropriate and not in contravention of these Terms.
(g) You:
(i) warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
THIRD PARTY SOFTWARE & terms
9.3 THIRD PARTY TERMS
(a) In providing you the Solution, we use services supplied by third parties to power the Software. Your use of the Solution is subject to the terms and conditions of those third party (‘Third Party Terms’). The Third Party Terms which apply to your use of the Solution include those set out in our sub-processors list, made available through a customer service request, or found in the support section of the Website.
(b) Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you agree to any Third Party Terms applicable to any goods or services supplied by a third party that we acquire as part of 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.
(c) You have the right to reject any Third Party Terms. If you reject the Third Party Terms, we cannot provide the Solution to you and clause 14 will apply.
(a) 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.
(b) 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, and including by incorporating APIs into the Software.
(c) 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 Integration), then:
(i) you acknowledge and agree that User Integrations can have adverse effects on the Solution, including the Software;
(ii) you will indemnify us in relation to any loss or damage that arises in connection with the User Integrations;
(iii) we will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Integration;
(iv) we will not be responsible for any unauthorised access to any data resulting from that User Integration
(v) we may require you to change or remove User Integrations, at our discretion, and if we do so, you must act promptly;
(vi) we may suspend your access to the Solution until you have changed or removed User Integration; and/or
(vii) we may change or remove any User Integration, 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 Integration.
(a) 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.
(b) 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.
(c) 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
(a) 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: https://www.stackmarks.com/privacy-policy.
(b) 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.
(c) By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.
12.1 WARRANTIES AND LIMITATIONS
(a) (Warranties) We warrant that:
(i) during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and
(ii) to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will use our best efforts to correct any errors, bugs or defects in the Software as soon as possible which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:
(i) result from the interaction of the Software with any other solution or computer hardware, software or services not approved in writing by us;
(ii) result from any misuse of the Software; or
(iii) result from the use of the Software by you other than in accordance with these Terms or the Documentation.
(c) (Service Limitations) While we will use our best endeavours to ensure the Solution is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:
(i) the Solution may have errors or defects;
(ii) the Solution may not be accessible at times;
(iii) messages sent through the Solution may not be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Solution may not be secure or confidential; or
(v) any information provided through the Solution may not be accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.
(e) (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 provided.
(a) To the maximum extent permitted by law and subject to clause 12.2(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Solution is limited to the total Fees paid to us by you in the 3 months preceding the date of the event giving rise to the relevant liability.
(b) Clause 12.2(a) does not apply to your liability in respect of loss or damage sustained by us arising from a breach of clauses 4, 7, 8, 9, 10, and 13.
To the maximum extent permitted by law, neither party will 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 in connection with these Terms or any goods or services provided by us, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property;
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth);
(c) in respect of your liability in respect of loss or damage sustained by us arising from a breach of clauses 4, 7, 8, 9, 10, and 13.
(a) You may notify us that you would like to upgrade or downgrade your Subscription Tier or the Report Types or any other Subscription Inclusions at any time. If you do, we will:
(i) take reasonable steps to promptly provide you with access to the new Subscription Tier or the revised Report Types or Subscription Inclusions; and
(ii) upon providing such access, apply the new, relevant Subscription Fees, to the Renewal Period immediately following the period in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in every subsequent Renewal Period.
(b) If you choose to downgrade your Subscription Tier, Report Types, Workspaces or Subscription Inclusions, access to the new Subscription Tier or Report Types and the new Subscription Fees will apply from the start of the next Renewal Period, unless we notify you otherwise. We generally do not pro-rate downgrades in between Renewal Periods, however we reserve the right to from time to time.
(c) If you choose to downgrade your Subscription, you acknowledge and agree we are not liable, and you release us from all claims in relation to, any loss of content, features, or capacity.
14.1 cancellation at any time
Either party may cancel or terminate your Subscription for convenience by providing 5 Business Days’ notice to the other party.
14.2 cancellation for breach
(a) Either party may cancel your Subscription immediately by written notice if there has been a Breach of these Terms.
(b) A “Breach” of these Terms means:
(i) a party (Notifying Party) considers the other party (or any of its Personnel or Users) is in breach of these Terms and notifies the other party;
(ii) the other party is given 10 Business Days to rectify the breach; and
(iii) the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.
14.3 EFFECT OF TERMINATION
Upon termination of this agreement:
(a) you will no longer have access to the Software, your Account, or your User Data we hold and we will have no responsibility to store or otherwise retain any User Data (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point);
(b) unless agreed in writing, any Subscription Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid will be refundable; and
(c) each party must comply with all obligations that are by their nature intended to survive the end of this agreement.
14.4 DATA BACK UP
(a) Upon termination or expiry of these Terms, except where required by law, we may delete data and material associated with your or your User’s Account, including User Data and any Reports.
(b) We may not be able to recover any such data or content after the expiry of these Terms. You acknowledge and agree that it is your responsibility to back up any User Data, Reports, or other information stored on the Software or Portal prior to the expiry of these Terms.
(c) We will not be responsible to you, or any User, for, and we expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of these Terms and any loss of data.
15 DISPUTE RESOLUTION
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:
(i) reasonable details of the Force Majeure Event; and
(ii) 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.
(c) 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.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) 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
(a) A notice or other communication to a party under these Terms must be:
(i) in writing and in English; and
(ii) 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.
(b) 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:
(i) 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
(ii) when replied to by the other party,
whichever is earlier.
18 GENERAL
18.1 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.
18.2 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.
18.3 SEVERANCE
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.
18.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
18.5 ASSIGNMENT
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.
18.6 ENTIRE AGREEMENT
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.
18.7 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (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;
(e) (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;
(f) (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;
(g) (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;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (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
Term | Definition |
Brand First Party Data | means any files, data or information owned and controlled by the relevant brands or businesses connected to the Account. |
Channel Data | means data owned and controlled by the relevant Integrated Channels (e.g. Meta)which may be made accessible to us in data clean rooms in a hashed or de-identified form. |
Client Administrator | means the individual or individuals nominated by you or the creator of the Account to manage the Account Settings (defined in clause 7.3(a)) |
Confidential Information | means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge. |
Documentation | means all manuals, help files and other documents supplied by us to you relating to the Software, whether in electronic or hardcopy form. |
End User Licence Agreement | means the End User Licence Agreement to be entered into by each User before being given access to the Software. |
Hosting Services | has the meaning given in clause 6. |
Integrated Channel | means a third party channel or social media platform which is connected to the Solution in order to generate Reports (including, but not limited to, Meta’s Business Manager). |
Intellectual Property Rights | means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. |
Material | means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever. |
Report Types | means the types of Reports which can be generated by Users by using the Solution, in accordance with your Subscription Tier or as otherwise agreed from time to time. |
Portal | means the StackMarks Portal accessible at https://app.stackmarks.com or via the Website. |
Personnel | means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents. |
Reports | means the automated data visualisations or other custom reports created using the Solution, including without limitation, audience overlaps, creative placements, reach saturation, and creative pathways and any other graph, chart, analysis, insight or visual produced by a User using the functionality within the Solution. |
Software | has the meaning given in the first paragraph of these Terms. |
Software Content | has the meaning set out in clause 9.1(a). |
Solution | has the meaning set out in clause 4.1. |
Subscription | has meaning given in the first paragraph of these Terms. |
Subscription Fees | has the meaning set out in clause 8 of these Terms. |
Subscription Inclusions | means the benefits, inclusions, and limitations of your Subscription Tier as set out on our Websiteincluded with your Subscription. |
Subscription Period | means the period of your Subscription to the Solution as agreed on the Website. |
Subscription Tier | has the meaning given in the first paragraph of these Terms. |
Support Services | has the meaning given in clause 4.6. |
User | means you and any third party end user of the Software who you make the Software available to. |
User Data | means any files, data, document, information or any other Materials, which is uploaded to the Software by you or any other User or which you, your Personnel or Users otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials. |
Website | means the website at the URL set out in the first paragraph of these Terms, and any other website operated by us in connection with the Solution. |
Work Order | means an order form for Professional Services signed by both parties setting out the scope of work, additional Fees payable by you, and any other details relevant to the provision of the Professional Services in a form notified by us to you from time to time. |
Workspace | means each data clean room or other data environment from which Channel Data or Matched Data is used to create Reports or provide Professional Services. |