1.1 Welcome to Deloosh, tools, software, and services (collectively, “Deloosh Service”), provided to you by Deloosh Pty Ltd. (“we” “us” “our” or “Deloosh”).
1.2 Your use of the Deloosh Service or Deloosh’s Web properties through which the Deloosh Service is available is subject to this Deloosh Terms of Service (“TOS”) in effect at the time of your use. Deloosh reserves the right to update and change this TOS from time to time without notice or acceptance by you, so please check this page frequently for updates and changes. However, changes made to this TOS will not apply to you to the extent that (i) the changes concern matters which are the subject of an actual dispute between you and Deloosh as of the date the changes take effect and (ii) Deloosh has actual notice of the dispute as of the date the changes take effect.
1.6 The Deloosh Service is not intended for users under the age of thirteen (13). By signifying your acceptance of this TOS or making any use of the Deloosh Service, you represent and warrant that you are at least thirteen (13) years of age.
- REGISTRATION, ACCOUNT INFORMATION AND SECURITY
2.1 When you register to use the Deloosh Service, you must provide true, accurate, current and complete information about yourself and maintain and promptly update your account information to keep it true, accurate, current and complete.
2.2 You are responsible for maintaining control over access to your account, including the confidentiality of your account log-in and password, and are responsible for all activities that occur on or through your account, whether authorized by you or not. Deloosh will not be liable for any loss or damage arising from your failure to maintain control over access to your account.
- VERSIONS AND SERVICE LEVELS
3.1 The Deloosh Service may be made available in free or paid versions and/or in different service levels. Not all of the features and functionality of the Deloosh Service may be available in each version or service level. The features and functionality of each version or service level may be changed from time to time at Deloosh’s discretion.
3.2 Deloosh reserves the right to change, suspend or discontinue part or all of any version of the Deloosh Service at any time, for any reason, without notice and without explanation.
- PROFESSIONAL SERVICES
4.1 Deloosh may offer certain professional services, such as statistical data analysis, report writing, interpretation of results, and report writing services, to users of the Deloosh Service (collectively, the “Professional Services”). Deloosh will document the scope, cost, schedule and deliverables for each such Professional Services. Professional Services will be subject to all of the terms and conditions of this TOS.
4.2 Deloosh will perform Professional Services in a competent and professional manner and will use its reasonable commercial efforts to cause the Professional Services to be completed. You will provide all assistance and cooperation reasonably necessary to permit Deloosh to timely and efficiently provide the Professional Services. You acknowledge that Deloosh will not be in breach of any contract if Deloosh’s failure to provide the Professional Services is caused by your failure to provide the necessary assistance and cooperation.
4.3 Upon payment in full of all of Deloosh’s invoiced fees for the Professional Services, you will have a worldwide, royalty-free, non-exclusive, non-transferable right and license to use the deliverables specified in the corresponding Statement of Work (the “Deliverables”) solely in connection with your Deloosh account. You will not rent, sell, assign, lease, sublicense or otherwise transfer any Deliverables.
4.4 Deloosh owns all right, title and interest in and to the Deliverables. Deloosh reserves all rights to the Deliverables that are not expressly granted to you herein. Nothing herein will be construed as granting you any property rights in the Deliverables, or to any invention or any patent, copyright, trademark, or other intellectual property right that has been issued, or that may issue, based on the Deliverables. The Deliverables are licensed hereby, not sold.
- PAYMENT TERMS APPLICABLE TO PAID VERSIONS OF THE Deloosh SERVICE
5.1 In order to register for or use a paid version of the Deloosh Service, you may be required to provide Deloosh with billing and account information (“Billing Information”) for a credit card, payment card or another payment system for which you are authorized to approve charges (each, a “Payment Source”) to allow Deloosh to collect payment from you for your use of the Deloosh Service. You must provide Deloosh with true, accurate, current and complete Billing Information and maintain and promptly update your Billing Information to keep it true, accurate, current and complete.
5.2 You authorize Deloosh to automatically and immediately bill your Payment Source when charges for your use of the paid version of the Deloosh Service are due, without any further action on your part or other prior notice on the part of Deloosh. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
5.3 If you register to use a paid version of the Deloosh Service on a free-trial basis and you do not cancel the trial before the expiration of the trial period, then, upon the expiration of the trial period, your account will be automatically converted to a paid account and your Payment Source will be billed for that paid Deloosh Service.
5.4 If your Payment Source is invalid, if charges billed to your Payment Source are declined or not paid or if you fail to pay charges for a paid version of the Deloosh Service when due, your account may be downgraded, suspended or cancelled, at Deloosh’s discretion. If your account is suspended, Deloosh may, but is not obligated to, maintain your account and/or related content and information, in order to allow you pay the past-due charges and restore your account. If the charges are not paid, your account may be cancelled.
5.5 Unless stated to the contrary, all charges for paid versions of the Deloosh Service are non-refundable, even if your use of the paid version of the Deloosh Service is cancelled before the end of your current billing period.
5.6 Unless stated to the contrary, all currency references in paid versions of the Deloosh Service are in U.S. dollars.
- ADDITIONAL PAYMENT TERMS APPLICABLE TO Deloosh BUSINESS CLASS SERVICE ACCOUNTS
6.1 If you subscribe to Deloosh Business Class Service on an annual basis, your payment of the Service Fee for the initial annual term is due on the Effective Date specified in your Deloosh upgrade form. Payment of the Service Fee for each annual term thereafter is due in advance on the first day of each such annual term. Deloosh will invoice you for such Service Fees and you will pay each such invoice within thirty (30) days of its date.
6.2 If you subscribe to the Deloosh Service on a monthly basis, your payment of the Service Fee for the initial monthly term is due on the Effective Date of initial registration. Payment of the Service Fee for each monthly term thereafter is due in advance on the first day of each such monthly term. The Service Fee will be paid to Deloosh via your Payment Source. Deloosh will not initiate your Deloosh Service monthly subscription until Deloosh receives payment of the Service Fee for the initial monthly term in full.
6.3 As between you and Deloosh, you will, in addition to the other amounts payable to Deloosh, pay all sales and excise taxes and other taxes, federal, state, or otherwise, as well as customs duties where applicable, however designated, which are levied or imposed by reason of any transaction pursuant to this Deloosh Terms of Service, other than those taxes based on the income of Deloosh. You will pay to Deloosh an amount equal to any such taxes or duties actually paid, or required to be collected or paid, by Deloosh.
- UPGRADES AND DOWNGRADES
7.1 Deloosh may make available the ability for you to voluntarily upgrade or downgrade your account between free or paid versions and/or different service levels of the Deloosh Service. In addition, Deloosh reserves the right to downgrade your account if you fail to pay charges for a paid version of the Deloosh Service when due or if you cancel your account for a paid version of the Deloosh Service without requesting that Deloosh delete your account completely.
7.2 If your account is upgraded from a free version of the Deloosh Service to a paid version of the Deloosh Service, your Payment Source will be automatically billed for that paid Deloosh Service.
7.3 If your account is upgraded to a service level of a paid version of the Deloosh Service for which the charges are greater than your current service level, your Payment Source will be automatically billed a pro-rata amount of the charges due for the balance of your current billing period.
7.4 If your account is downgraded from a paid version of the Deloosh Service to a free version of the Deloosh Service, or your account is downgraded to a service level of a paid version of the Deloosh Service for which the charges are less than your current service level, you will not receive a refund of the difference in the charges due for the balance of your current billing period.
7.5 If your account is downgraded from a paid version of the Deloosh Service to which a discount is applied (including but not limited to a term or volume discount) to a paid version of the Deloosh Service to which a lesser or no discount is applied, Deloosh may bill your Payment Source to recover the amount of the difference in the charges due retroactive to the first date the discount was applied.
7.6 Upgrading or downgrading your account between different versions or service levels of the Deloosh Service may result in changes to the features and functionality available to you. Further, downgrading your account may result in some or all of the content and information relating to your account being no longer available to you and/or being deleted by Deloosh. Deloosh will have no liability for content or information that is no longer available to you or that is deleted due to the downgrading of your account.
- CANCELLATION AND TERMINATION
9.1 If you voluntarily cancel a paid version of the Deloosh Service before the end of your current billing period, your cancellation will take effect upon Deloosh’s receipt and processing of your cancellation request.
9.3 Deloosh, in its sole discretion and at any time, may discontinue providing the Deloosh Service, or any part thereof, with or without notice. Any termination of your access to the Deloosh Service under any provision of this TOS may be effected without prior notice. Deloosh may immediately deactivate or delete your account, as applicable, and all related information and content. Deloosh reserves the right to bar any further access to such information or content or the Deloosh Service. Deloosh will not be liable to you or any third party for any termination of your access to the Deloosh Service.
9.4 After cancellation or termination of your account for any reason, you will no longer have access to your account and all information and content in your account or that you have stored on the Deloosh Service may be deleted by Deloosh. Deloosh will have no liability for information or content that is deleted due to the cancellation or termination of your account for any reason.
- ADDITIONAL CANCELLATION AND TERMINATION TERMS APPLICABLE TO Deloosh BUSINESS CLASS ACCOUNTS
10.1 If you subscribe to Deloosh Service on an annual basis, your subscription will commence on the Effective Date specified in your Deloosh upgrade form and will remain in full force and effect for an initial term of one (1) year, after which it will automatically renew for subsequent terms of one (1) year each unless terminated earlier by you or by Deloosh. You may terminate your Deloosh Service annual subscription only at the end of a full annual term, by giving Deloosh at least thirty (30) days advance written notice of such termination.
10.2 If you subscribe to Deloosh Service on a monthly basis, your subscription will commence on the Effective Date of registration and will remain in full force and effect for an initial term of one (1) month, after which it will automatically renew for subsequent terms of one (1) month each unless terminated earlier by you or by Deloosh. You may terminate your Deloosh Service monthly subscription at any time, but will not be granted a refund for any time left on your monthly plan if you have already paid for the month. If payment has already gone through for the month after you have cancelled, that money will not be refunded. Allow at least (15) days advance written notice of such termination. 1
- ADDITIONAL SOFTWARE
11.1 With respect to any additional software that may be made available by Deloosh in connection with the Deloosh Service, if you elect to download or access such additional software, you understand that you may have to agree to additional terms and conditions before you use such software.
- INTERSTATE AND INTERNATIONAL USE
12.1 In using the Deloosh Service to send electronic communications, and as a result of Deloosh’s network architecture and business practices and the nature of electronic communications in general, you acknowledge that your communications may constitute interstate or international communications and/or data transmissions regardless of where you are physically located at the time of transmission.
12.2 The Deloosh Service is hosted in Australia. If you use the Deloosh Service from outside of the Australia, you are voluntarily transferring information (potentially including personally-identifiable information) and content to Australia and agreeing that Deloosh’s collection, use, storage and sharing of your information and content is exclusively subject to the laws of the Australia, not of the jurisdiction in which you are located.
12.3 You will comply with all Australian laws, rules and regulations applicable to the export of products, services, software and technical data regardless of the jurisdiction in which you are located.
14.1 The Deloosh Service may provide, or third parties may provide, links to other content, products, services or Web sites which are not owned or operated by Deloosh. Because Deloosh has no control over such content, products, services or Web sites, Deloosh is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Deloosh will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products, services or Web sites.
- RESALE OF Deloosh SERVICE
16.1 You will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Deloosh Service, use of the Deloosh Service or access to the Deloosh Service without the express permission by Deloosh.
- GENERAL PRACTICES REGARDING USE AND STORAGE
17.1 Deloosh may establish general practices and limits concerning use of the Deloosh Service and may modify such practices and limits from time to time.
- MODIFICATIONS TO THE Deloosh SERVICE
18.1 Deloosh reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Deloosh Service (or any part thereof) with or without notice at any time. You agree that Deloosh will not be liable to you or to any third party for any modification, suspension or discontinuance of the Deloosh Service.
- CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
19.1 The Deloosh Service and any necessary software used in connection with the Deloosh Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. content contained in sponsor advertisements or information presented to you through the Deloosh Service or advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Deloosh or advertisers, you will not modify, rent, lease, loan, sell, distribute or create derivative works based on the Deloosh Service, any necessary software used in connection with the Deloosh Service or any advertiser’s content, in whole or in part.
- DISCLAIMER OF WARRANTIES
20.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE Deloosh SERVICE IS AT YOUR SOLE RISK. THE Deloosh SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DELOOSH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. (b) DELOOSH WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE Deloosh SERVICE, HOWEVER, DELOOSH IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE Deloosh SERVICE, OR OTHER INTERACTION WITH THE Deloosh SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE Deloosh SERVICE. DELOOSH DOES NOT WARRANT THAT (i) THE Deloosh SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE Deloosh SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE Deloosh SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE Deloosh SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE Deloosh SERVICE WILL BE CORRECTED. (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE Deloosh SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE Deloosh SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
- LIMITATION OF LIABILITY
21.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT DELOOSH WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DELOOSH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE Deloosh SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE Deloosh SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE Deloosh SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE Deloosh SERVICE.
- EXCLUSIONS AND LIMITATIONS
22.1 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 18 AND 19 MAY NOT APPLY TO YOU. 23. U.S. GOVERNMENT RESTRICTED RIGHTS
22.2 If you are an agency of the United States Government, the Deloosh Service is a “Commercial Item,” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the United States Government (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All unpublished rights are reserved under the copyright laws of the United States. For purpose of any public disclosure provision under any law, it is agreed that the Deloosh Service is a trade secret and proprietary commercial product and not subject to disclosure.
24.1 Notices to you may be made via either email or regular mail. Deloosh may also provide notices of changes to this TOS or other matters by displaying notices or links to notices to you generally on the Deloosh Service.
24.2 This TOS and the relationship between you and Deloosh will be governed by the laws of the State of Victoria, Australia without regard to its conflict of law provisions. You and Deloosh agree to submit to the personal and exclusive jurisdiction of the courts located within Melbourne, Australia with regard to all disputes arising in any manner from the Deloosh Service, Deloosh’s Web properties through which the Deloosh Service is available or this TOS.
24.3 The failure of Deloosh to exercise or enforce any right or provision of this TOS will not constitute a waiver of such right or provision. This TOS constitutes the entire agreement between you and Deloosh and governs your use of the Deloosh Service, superseding any prior agreements between you and Deloosh (including, but not limited to, any prior versions of this TOS). If any provision of this TOS or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TOS will remain in full force and effect.
24.4 You also may be subject to additional terms and conditions that may apply when you use affiliated or other Deloosh services, third-party content or third-party software.
24.5 Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Deloosh Service, Deloosh’s Web properties through which the Deloosh Service is available or this TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
24.6 The section titles in this TOS are for convenience only and have no legal or contractual effect.
Last updated February 8, 2010
Copyright © 2016 Deloosh Pty Ltd. All rights reserved. ABN 49 134 716 377