SMP Pty Ltd

TERMS AND CONDITIONS OF USE

21 May 2013

Please read these Terms carefully.  By using SMP or signing up for an account, you’re agreeing to these Terms. This is a legal agreement.

 

DEFINITIONS

“SMP” includes the online surveying system that allows our users to construct surveys and send out email invitations, receiving back respondent answers.

The service is offered through a website which we will refer to as “site” and includes any part of SMP web sites, its related software and any other web site operated by or on behalf of us including the corporate site “www.smpsurveys.com.  Specifically the software site “v’n’.smpsurveys.com” were “n” refers to the version number that you are using such as v7.smpsurveys.com.

“use” includes access or use of the site and includes (without limitation) access to and use of site content, completion and submission of any online form available at or through the site, preparation of on-line surveys using the site, distribution of surveys using the site, collection of the results of surveys using this

site, analysis of survey results using this site, submission of any email to an email address identified at or through the site, participation in any social network, forum, chat-room or similar facility available at or through the site, access to and use of content and other facilities on any other web site via a link provided on the site and, participating in any competition or promotion at or through the site.

“we”, “us” and “our” means SMP Research Pty Ltd (ACN 137 168 935) and its related corporations and their respective officers, employees, agents and contractors including (without limitation) site hosts, operators and developers and contributors of site content.

“you” and “your” means any person who uses the site.

 

SCOPE

You must read and agree to these terms and conditions before making any other use of the site. If you do not agree to these terms and conditions, you must not use the site. By making any use of the site, you thereby accept and agree to be bound by these terms and conditions. These terms and conditions apply to all use of the site including your use of sections of the site which are subject to additional specific terms and conditions. Your use of any section of the site which is subject to specific terms and conditions is subject to your prior acceptance of those specific terms and conditions and you agree to be bound by those specific terms and conditions with respect to your use of the relevant section(s) of the site even if you fail to review the specific terms and conditions. Without limitation, if you use this site to conduct on-line surveys, you thereby also agree to pay all applicable fees and to comply with all our requirements governing such activity.

These terms and conditions govern all access to and use of this web site.  Without limitation, if you use this site to conduct on-line surveys, you thereby also agree to pay all applicable fees and to comply with all our requirements governing such activity.

 

ACCOUNT

Eligibility

In order to use SMP you must:

  1. Complete the registration,
  2. Agree to the terms,
  3. Provide true and up to date contact information.

 

Term

The Term begins when you register for an SMP account and continues as long as you use the Service. Entering your username and password and entering the site by clicking the button means that you’ve officially “signed” the Terms. If you sign up for SMP on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.

 

Closing your account

You may close your account only within the limitations of the agreed term or plan of service that you originally signed up for.  You may not terminate a 12 month plan until the day of the 12 months term is complete.

SMP may terminate this Agreement at any time and for any reason by giving Notice to the other party. We may suspend our Service to you at any time, with or without cause. If we terminate your account without cause, we’ll refund a prorated portion of your monthly prepayment or reimburse you for unused Email Credits. We won’t refund or reimburse you if there’s cause, like a violation of these Terms or our Unacceptable Use Policy. Once terminated, we may permanently delete your account and all the data associated with it, including your emails from our Website. If you don’t log in to your account for 12 or more months, we may treat your account as “inactive” and permanently delete the account and all the data associated with it.

 

Changes

We may change any of the Terms by posting revised Terms of Use on our Website and/or by sending an email to the last email address you gave us. Unless you terminate your account within ten (10) days, the new Terms will be effective immediately and apply to any continued or new use of SMP. We may change the Website, the Service, or any features of the Service at any time.

 

Account and Password

You must keep your user name and password secret and secure and must not permit anyone else to use your user name or password to access the site except a person who works with you in your business and who has also agreed to be bound by these terms and conditions. At any time, only a single person will be able to access the site using a particular user name and password.  You’ll immediately notify us of any unauthorized use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords.

 

PAYMENT

Plans

Our charges for monthly plans are posted on our Website and may be changed from time to time. If any part of a month is included in the Term, then payment is due for the full month. Payments are due for any month on the same date, or the closest date in that month, to the day you signed up with us and made your first monthly payment (the “Pay Date”).

12 month plans cannot be terminated until the full term (12 months) is completed.  Month by month plans can be cancelled at any time but you will be charged for the entirety of any part month that you are signed up for.

 

Auto-Renewal and Termination of Services

Services provided at or through the site are generally offered on a periodic basis and your subscription for a service will auto-renew upon expiry of the then current period for a further equivalent period, subject to payment of applicable fees and subject to any cancellation by us or you in accordance with the following provisions.

You may avoid the auto-renewal of your services and you may terminate your subscription to any of our services by following the unsubscribe procedures we specify from time to time, provided you do this before the deadline we specify for exercising the right to unsubscribe or, if no deadline is specified, not less than 2 days before the date on which the current term expires.

We may suspend or terminate your subscription immediately or we may continue to provide reduced or limited services if you fail to comply with these terms and conditions. We may suspend or terminate any category of free services at any time. Without limitation, we may cancel a free service if you have not accessed or used the service for a period of 90 days or more.

We may terminate or suspend a service for which fees have been paid without any fault on your part. If we exercise this right to terminate, where possible the termination will take effect on the expiry of the current periodic term of the service.  Following expiry or termination of a service, you will no longer be able to access the service or the data collected using the service (except to the extent that you have exported that data to your own systems).

 

CREDIT CARDS

As long as you’re a Member or have an outstanding balance with us, you’ll provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any credit card that expires with information for a different valid credit card. Anyone using a credit card represents and warrants that he or she is authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If, for some reason, we’re unable to process your credit card order, we’ll try to contact you by email and/or suspend your account until your payment can be processed.

 

Changes

We may change our fees at any time by posting a new pricing structure to our Website and/or sending you a notification by email.

 

WARRANTIES

We do not attempt to exclude any conditions, warranties, rights or remedies which you may have pursuant to the Trade Practices Act 1974 or other legislation to the extent that those rights and remedies can not be excluded by agreement (“non-excludable rights”).

Subject to any non-excludable rights: (a) the site and its contents are provided on an “as is” basis; and (b) all express or implied conditions or warranties of any kind (including but not limited to any warranties of merchantability, fitness for a particular purpose, freedom from contamination by computer viruses, non-infringement of proprietary rights and 21/05/2013 Terms and Conditions | Online Surveys & Questionnaires | SMP http://www.smpsurveys.com/?page_id=1375 the accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any content or other part of the site) are excluded. If you find any errors or omissions, please report them to us.

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ANTI-SPAM COMPLIANCE AND REQUIREMENTS

Requirements for All SMP Campaigns

In order to send emails from SMP, you must agree to our terms of use.

You must also tell us where you got your list.

You absolutely, positively MUST include our unsubscribe link on your campaigns.

You must include your contact information inside every email that you send, including a physical mailing address where you can receive mail or a PO Box. (Not a website or email address.)

You may not falsify your contact information or subject line.

We require that your emails comply with the spam rules relevant and applicable to the countries within which, or destined to the countries you intend to send email to.

 

COMPLIANCE WITH LAWS

You represent and warrant that your use of SMP will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements. If you’re located in the European Economic Area (EEA) or send to anyone in the EEA, you represent and warrant that in creating your Email distribution list, sending Emails via SMP , and collecting information as a result of sending Emails, you:

  1. Will clearly describe in writing how you plan to use any data collected, including for your use of SMP . You’ll get express consent to transfer data to SMP as part of this process, and you’ll otherwise comply with whatever privacy policy you have posted.
  2. Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where you’re sending any form of email through SMP.
  3. Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection laws and regulations. You have the necessary permission to allow SMP to receive and process data and send communications to that individual on your behalf.
  4. Agree to indemnify and hold us harmless from any losses, including attorney fees, that result from your breach of any part of these warranties.

 

LIABILITY ARISING FROM USE OF THE SITE

SUBJECT TO ANY NON-EXCLUDABLE RIGHTS: (A) YOUR USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK; (B) YOU HEREBY RELEASE US FROM ANY CLAIMS YOU WOULD OTHERWISE HAVE AGAINST US NOW OR IN FUTURE ARISING DIRECTLY OR INDIRECTLY FROM THE SITE OR YOUR USE OF THE SITE; AND (C) IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITE, OR ARISING FROM YOUR PURCHASE OR INABILITY TO PURCHASE ANY GOODS OR SERVICES OFFERED ON THE SITE, OR ARISING FROM YOUR INABILITY TO PARTICIPATE IN ANY COMPETITION OR OTHER PROMOTION OFFERED ON THE SITE WHETHER BASED ON CONTRACT, TORT, STATUTE, COMMON LAW, EQUITY OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, THIS EXCLUSION OF LIABILITY APPLIES TO ANY LOSS OR DAMAGE CAUSED BY ANY DEFICIENCY IN SITE PERFORMANCE AND ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORISED ACCESS TO, ALTERATION OF, OR USE OF ANY MATERIAL ASSOCIATED WITH THE SITE OR YOUR ATTEMPTED USE OF THE SITE.  IF YOU ARE ENTITLED TO MAKE ANY CLAIM AGAINST US AS A RESULT OF NON-EXCLUDABLE RIGHTS OR ON ANY OTHER BASIS NOTWITHSTANDING THE PROVISIONS OF THESE TERMS AND CONDITIONS, OUR LIABILITY TO YOU FOR THE AGGREGATE OF SUCH CLAIMS (REGARDLESS OF THE BASIS ON WHICH YOU ARE ENTITLED TO CLAIM FROM US) IS LIMITED TO THE PROVISION OF THE INFORMATION, PRODUCTS OR SERVICES AGAIN OR PAYMENT OF THE COST OF PROVIDING THE INFORMATION, PRODUCTS OR SERVICES AGAIN (AT OUR ELECTION).

 

INDEMNITY

You must indemnify each of us and keep each of us indemnified against all claims, liabilities, expenses (including legal fees on a solicitor-client basis) or losses that may be made against or sustained by any of us arising from your breach of these terms and conditions or otherwise howsoever from or in connection with your use of the site.

 

INAPPROPRIATE USE AND CONTENT

You must comply with our Spam Policy and (in particular but without limitation) you must not use our site in order to send unsolicited email to recipients who have not given you permission to send them email, within the context of the relevant SPAM laws in each country in which you send or intend to send emails to. You must not email, post or submit any defamatory, offensive, illegal or inappropriate material or any material which infringes a third party’s intellectual property rights or which contains a virus, worm, Trojan horse or other code that manifests contaminating or destructive properties. You must not attempt to modify or damage the site and must not use the site in connection with any denial of service attack. You must not impersonate any person or entity or enter a fictitious name or purport to be authorised to represent any entity if that entity has not authorised you to do so in connection with your use of the site. You must not cause or permit any other person to engage in any of these activities (eg. by providing them with access to your computer or by providing password information to them). We are not liable for defamatory, offensive, illegal or inappropriate content available at the site or accessed from the site and the risk of injury from such content rests entirely with you.

 

THIRD PARTY MATERIAL

The site may include content or references supplied by users or other third parties (“third party material”). We do not monitor and accept no liability for third party material. Any opinions, advice, statements, services, offers or other information contained in third party material, is the responsibility of the respective author(s), distributor(s) or providers of that third party material. We make no representation and give no endorsement of the accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any third party material or the identity, knowledge or qualifications of any provider of third party material. Your access to and reliance on third party material is entirely at your own risk. References in third party material to any specific products, process, or service by trade name, trademark, manufacturer, or otherwise, do not constitute or imply their sponsorship, endorsement or recommendation by us, and such references shall not be used for advertising or product endorsement purposes.

 

LINKS TO THIRD PARTY WEB SITES

Any links to third party web sites from the site are provided solely as a convenience to you. We make no representation as to the intellectual property rights of any material available on the linked third party web sites or your rights to access, reproduce and use that material. We do not review and monitor any linked third party web sites and we are not responsible for the contents, accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any material on any third party web site and accept no responsibility for any broken or redirected links. The presence of such links should not be taken to imply any type of association, sponsorship, endorsement, monitoring, approval of, or responsibility for, the linked third party web site or its content. It is your responsibility to evaluate the content and usefulness of information obtained from other sites. Your access to and reliance on any third party web site is entirely at your own risk. You acknowledge and agree that we may receive payments or other benefits in connection with links to third party sites or the inclusion of third party material in the site.

 

LINKS FROM OTHER SITES TO THE SITE

Other sites may only link to the site with our prior written permission. Any site that links to the site must link to the relevant home page and must not (a) replicate the site’s content; (b) create a browser or border environment around the site’s content; (c) imply any endorsement by us; (d) misrepresent its relationship with us; (e) present false information about our products and services; or (f) use our name or logos without our prior written permission.

 

VIRUSES

We cannot and do not guarantee or warrant that the site will be free of infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for virus detection, accuracy of data input and output and for maintaining an appropriate means for the reconstruction of any lost data.

 

COPYRIGHT, TRADE MARKS & LIMITED RIGHT TO USE MATERIALS

We or third parties own and retain the copyright, trade marks and other intellectual property rights in the materials found at the site including without limitation web pages, documents, text, designs, graphics, audio and video. Unless otherwise expressly stipulated by us, you may only use the site for your internal business purposes or for personal use and may only print or make an electronic copy of information available on the site for that purpose. You must not sell or otherwise commercially exploit any information made available at the site. You must ensure that all copyright notices are retained in any material copied from the site. Subject to this limited right to use materials, you must not use, download, upload, copy, print, display, broadcast, perform, reproduce, publish, license, post, transmit or distribute any materials from the site in whole or in part without our prior written permission. If you breach any of these terms and conditions, then (without limiting your other liabilities) your authorisation to use the site automatically terminates and you must immediately destroy any downloaded or printed materials. By submitting any material to the site or to us in connection with your use of the site, you thereby assign all intellectual property rights in that material to us. You must not submit 17/10/2012 Terms and Conditions | Online Surveys & Questionnaires | Web Survey Creator https://www.websurveycreator.com/terms_and_conditions.aspx 3/3 material to the site if a third party has any intellectual property rights in that material unless you have obtained the permission of that third party to submit the material. You must indemnify us against all liabilities and losses we sustain if material you submit to the site infringes any third party intellectual property rights.

 

PRIVACY

Privacy of your information is subject to our Privacy Statement .

 

GOVERNING LAW

The site is administered by us from offices in Sydney, New South Wales Australia. These terms and conditions and your use of the site and any disputes between you and us shall be governed by and construed in accordance with the laws of New South Wales, without giving effect to any principles of conflicts of law. Any legal proceedings arising out of or in connection with the use of the site must be commenced in the appropriate court in New South Wales. You are solely responsible for ensuring that your use of the site is

not prohibited and complies with your local laws.

 

SEVERANCE

If any provision of these terms and conditions is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.

 

CHANGES TO SITE CONTENT AND ACCESS RIGHTS

We may modify the content, nature or accessibility of the site as and when we see fit. These terms and conditions will continue to apply even if you cease to be permitted or able to use the site.

 

REVISION OF THESE TERMS AND CONDITIONS

We may revise these terms and conditions at any time by updating this web page. You hereby agree to be bound by such revisions and should therefore regularly revisit this page to review the then current terms and conditions by which you are bound. Your continued use of the site after a revision of these terms and conditions evidences your acceptance of that revision.