Terms of Service
Calibre Analytics P/L
ABN 67 617 601 582
The Company provides the Calibre online application that provides powerful analytics and insights enabling improved user experiences on web-based applications. Use of Calibre is subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
- ABN means Australian Business Number.
- ACN means Australian Company Number.
- Agreement means the agreement formed between the Users and the Company under, and on the terms of, this Terms of Service.
- Alert means a notification sent to a User by Calibre.
- Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
- Calibre means the Calibre online application accessible from www.calibreapp.com.
- Company means Calibre Analytics P/L ABN 67 617 601 582.
Confidential Information means any written or verbal information that:
- Is about each party’s business or affairs;
- Is about the conduct of each party under this Agreement and the during the term of this Agreement;
- A party informs the other party that it considers it confidential and/or proprietary;
- A party would reasonably consider to be confidential in the circumstances; and
- Is personal information within the meaning of the Privacy Act.
- Was in the public domain at the time it was given to that party;
- Became part of the public domain, without that party’s involvement in any way, after being given to the party;
- Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
- Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
but does not include information that a party can establish:
- Corporations Act means the Corporations Act 2001 (Cth).
- Customer means a registered user of Calibre, that uses the features associated with a Customer account.
- Dashboard means the main interface for viewing the key information associated with the User’s account, and to perform common tasks within Calibre.
- Fee means a fee charged by the Company for use of Calibre.
- GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
- Privacy Act means the Privacy Act 1988 (Cth).
- Script means the scripting code supplied by the Company to the Customer that enables real-time tracking of Webpage users via Calibre, when installed on the Webpage.
- Subscription Fee means a Fee charged by the Company for use of Calibre on a periodical basis.
- Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act_ 1999 (Cth).
- Team Member means a user authorised to use such features of Calibre licensed to the Customer, as the Customer may allow.
- Terms of Service means the terms and conditions of using Calibre, as updated from time-to-time, which can be found at https://calibreapp.com/docs/terms.
- TPS means an online third-party service provider with whom a User holds an account.
- User means any registered Customer or Team Member that uses Calibre.
- User Content means images, information, documents or other data that is uploaded or input into Calibre by the User or that forms part of the User’s Intellectual Property.
- Webpage means a URL domain operated by the Customer.
2. Using Calibre
- To use Calibre, the User must login to Calibre and have set up their account.
- The User agrees that all use of Calibre is subject to these Terms of Service.
- Calibre is only available to Users over the age of 18.
The Customer shall be responsible for:
- Paying the Fees for using Calibre; and
- Each Team Member’s use of Calibre that the Customer authorises.
- Depending on the features subscribed for by the Customer, Calibre may allow a Customer to:
- Add Team Members;
- Add and manage Webpages to be monitored;
- Create and manage Alerts;
- Connect and manage TPS integration;
- Track the registered users of Webpages in real time; and
- Such other features as the Company may make available from time-to-time.
- Calibre may allow a Team Member to use such features made available by the Customer to the Team Member.
2.3. Dashboard and Alerts
- The User may enter such number of Webpages into Calibre in accordance with the Customer’s subscription.
- The User shall be able to view such information and in such graphical format as Calibre may support on the User’s Dashboard.
- The User is responsible for all User Content that it enters into Calibre.
- The User may be able to create Alerts in accordance with any criteria supported by Calibre.
- Alerts may be sent via email or any other TPS integration supported by Calibre, in accordance with the User’s criteria.
- The efficacy of Calibre depends on:
- The quality of the information provided to Calibre by the relevant Webpage, User or user of the Webpage; and
- The Users correct use of Calibre.
- The Company does not guarantee any particular outcomes will be achieved by the User’s use of Calibre.
Real-time user Tracking
- Real-time tracking features are only available on Webpages for which the Customer has subscribed for the real-time tracking features.
- In order to use the real-time tracking features of Calibre the Customer must correctly install the Script on their webpage.
The efficacy of the Script to provide the real-time tracking depends on:
- The Script being correctly installed on the Webpage by the User; and
- The Webpage’s code supporting the integration of the Script
The Company can not warrant the efficacy of the Script on any particular Webpage, and shall not be responsible in the event that installation of the Script results in:
- The real-time tracking features not working correctly within Calibre; or
- The Webpage not working properly, including not being available.
- If the Customer experiences any issues when installing the Script on a Webpage as described in clause (d), the Company recommends seeking support in accordance with clause 4.4, and the Company shall provide all reasonable assistance.
3. Fees, payments & refunds
- The primary Fee to use Calibre shall be the Subscription Fee, which is payable in advance (after any free trial period has expired).
- Each Fee applies in accordance with such features and/or services subscribed for by the Customer in accordance with the pricing described on the Site, or as otherwise agreed with the Company.
- The Customer agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Customer has subscribed for.
- All payments shall be made via the online payment gateway within Calibre, or in such other manner as the Company may direct from time-to-time. The Customer agrees that it has no right to access Calibre if it fails to make payments when due.
- The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the Customer has been given such notice.
- If a Customer does not accept a change to any Fees, then it can simply terminate its Account.
All Fees are quoted in US dollars, however transactions may be processed in an equivalent foreign currency (such as Australian dollars or British pounds).
For Customers in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Customer with a Tax Invoice for any payments.
No refunds of Fees are offered other than as required by law.
3.5. Late Payment
- If the Customer does not pay the full Fees as required, the Company may suspend all User access to Calibre for that Account.
- If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer’s Account in Calibre without notice and end this Agreement.
The User agrees that the Company shall not be responsible or liable in any way for:
- Interruptions to the availability of Calibre or User Content in the event of (a);
- Loss of User Content in the event of (b).
4. Third Party Login and Integration
4.1. Registration & Login
- A User may be able to register as a User, access Calibre and use integrated features (such as Alerts etc.), by connecting their account with certain third party services (TPS) (e.g, Slack etc).
As part of the functionality of Calibre the User may connect their profile with a TPS by:
- Providing their TPS login information to the Company through Calibre; or
- Allowing the Company to access their TPS in accordance with its terms & conditions of service.
- When connecting to Calibre using a TPS the User warrants that they are not in breach any of the TPS’ terms & conditions of service.
4.2. Ongoing Availability
The User agrees that User access to Calibre may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and Calibre.
- The User may disconnect the connection between Calibre and the TPS at any time.
- The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
4.3. Data from TPS
Where a User connects and or registers their account using a TPS, the User authorises the Company to use data from that TPS to create the User’s profile within Calibre.
5. General conditions
- By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Calibre for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
- The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
- The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.
5.2. Modification of Terms
- The terms of this Agreement may be updated by the Company from time-to-time.
- Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Calibre.
The User agrees and accepts that Calibre is:
- Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
- Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Calibre is available to the User unless expressly agreed in writing.
- As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Calibre.
- The Company provides user support for Calibre via the email address email@example.com.
- The Company shall endeavour to respond to all support requests within 1 Business Day.
5.5. Use & Availability
- The User agrees that it shall only use Calibre for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
- The User is solely responsible for the security of its username and password for access to Calibre. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Calibre account.
The User agrees that the Company shall provide access to Calibre to the best of its abilities, however:
- Access to Calibre may be prevented by issues outside of its control; and
- It accepts no responsibility for ongoing access to Calibre.
- Security. The Company takes the security of Calibre and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
- Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
- Storage. The Company stores data on servers based in the USA according to accepted industry standards. If the Customer requires its User Data to be stored in a different location, the Company may charge the Customer a fee to do so.
- Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.
5.8. Intellectual Property
- Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
- Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Calibre.
The Calibre Application. The User agrees and accepts that Calibre is the Intellectual Property of the Company and the User further warrants that by using Calibre the User will not:
- Copy Calibre or the services that it provides for the User’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Calibre or any documentation associated with it.
- Content. All content submitted to the Company, whether via Calibre or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Calibre.
5.9. Disclaimer of Third Party Services & Information
The User acknowledges that Calibre Is dependent on third-party services, including but not limited to:
- Banks, credit card providers and merchant gateway providers;
- Telecommunications services;
- Hosting services;
- Email services; and
- Analytics services.
The User agrees that the Company shall not be responsible or liable in any way for:
- Interruptions to the availability of Calibre due to third-party services; or
- Information contained on any linked third party website.
A party shall not:
- Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
- Disclose any of the Confidential Information except in accordance with clause 4.2.
Subject to clause 4.3, a Party may disclose Confidential Information that a Party is required to disclose:
- By law or by order of any court or tribunal of competent jurisdiction; or
- By any Government Agency, stock exchange or other regulatory body.
If a party is required to make a disclosure under clause 4.2, that party must:
- To the extent possible, notify the other party immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
- Only disclose Confidential Information to the extent necessary to comply.
- The Customer and the Company must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
5.11. Liability & Indemnity
- The User agrees that it uses Calibre at its own risk.
- The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
- The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Calibre, including any breach by the User of these Terms of Service.
- In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Calibre, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010(Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
- Either party may terminate this Agreement by giving the other party 1 month’s written notice.
- Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
- Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 5.9, 5.12 and 5.13 survive termination of this Agreement.
5.13. Dispute Resolution
If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
- Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
- Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
- Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
- Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
5.14. Electronic Communication, Amendment & Assignment
- The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
- The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
- The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
- A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
- Notices must be sent to the parties’ most recent known contact details.
- The User may not assign or otherwise create an interest in this Agreement.
- The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
- Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
- Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
- Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
- Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
- Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
- Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
- Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
- Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.