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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.