Terms and Conditions

These are our Terms and Conditions. There are two categories of Terms and Conditions:-

Survey Creator Terms and Conditions and Survey Respondents Terms and Conditions

Survey Creator Terms and Conditions

Web Survey Creator (WSC) is a service that enables Survey Creators to create, distribute and analyse results from surveys (Projects) using our platform in order to generate qualitative and quantitate market research data.

1.              BACKGROUND

1.1           This is a contract between "you", being a Survey Creator, and Dipolar Pty Ltd (ACN 081 623 181) ("we", "us" or "our") setting out the terms and conditions that govern your use of, and interaction with, WSC.

1.2           By clicking "I Agree", or otherwise using and interacting with WSC, you agree to:

a)    these terms and conditions, including the glossary; and

b)    our Privacy Policy, available at www.websurveycreator.com/privacy_policy.aspx   

together called the "Agreement".

1.3           All defined terms in this Agreement have the meaning given to them in the glossary, located at the end of these Terms and Conditions.

2.              SCOPE OF WSC SERVICE

2.1           We may assist you with the recruitment of Survey Respondents onto the WSC platform but we are not obliged to do so.

2.2           By the provision of access to WSC, we offer you a platform to create Projects to allow Survey Respondents to engage in, and respond to, surveys on Projects created by you in order to generate qualitative and quantitative market research data.

2.3           We may also, from time to time, provide you with ancillary support in relation to your use of WSC or the operation of your Projects.

2.4           You acknowledge and agree that, due to the nature of WSC, any material you submit may automatically and without time delay be published on it. We are under no obligation to control, vet or curate in any way content that is displayed on the platform.

2.5           You may also introduce specific conditions which apply to the relationship between you and a Survey Respondent. 

2.6           At our absolute discretion, we may refuse to allow any person or entity to register or use the WSC platform. We may also at our absolute discretion cancel or suspend any existing user of WSC.  

3.              EXCLUSIONS

3.1           We do not attempt to exclude any conditions, warranties, rights or remedies which you may have pursuant to legislation to the extent that those conditions, warranties, rights and remedies cannot be excluded by agreement ("Non-excludable Conditions").

3.2           We do not represent or warrant that:

a)    anything submitted to WSC by Survey Respondents will be of a particular quantity, quality or appropriateness for the purpose of the Project; and

b)    the market research data generated through the Survey Respondent's responses, comments and interactions on Projects will be of a particular quality, quantity, suitability or fitness for any particular purpose.

3.3           Subject to any Non-excludable Conditions and to the extent permitted by law:

a)    the WSC platform 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, freedom from contamination by computer viruses, non-infringement of proprietary rights and the accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any content or other part of the site) are excluded.

3.4           We have no obligation to assist or involve ourselves in any dispute between you and Survey Respondents, or between your Survey Respondents, although we may do so in order to improve the Survey Creator and Survey Respondent experience.

3.5           You acknowledge that we are not responsible for:

a)    the level or quality of participation of Survey Respondents on your Projects (which must be regulated through a separate agreement between you and the Survey Respondent);

b)    monitoring or controlling the accuracy, appropriateness or suitability of content submitted by Survey Respondents on the WSC platform;

c)     the performance of your Projects;

d)    ensuring that WSC is suitable for your requirements or is fit for any particular purpose;

e)    any interruption to WSC due to technical malfunctions, internet outages, equipment failure, the need for routine maintenance, etc.; and

f)      any software available on the WSC platform that is supplied by third parties.

4.              SURVEY CREATOR'S OBLIGATIONS

4.1           When accessing and using WSC, you must:

a)    comply with our Spam Policy and (in particular but without limitation) not use the WSC platform in order to send unsolicited email to recipients who have not given you permission to send them email;

b)    only access and use WSC as intended through the functionality of the platform;

c)     at all times comply with this Agreement and all Applicable Laws and Regulations;

d)    promptly apply all applicable updates to the WSC platform that we may issue from time to time; and

e)    maintain control of your account and not deal with your account in any way, including by allowing others to use your account, or by transferring or selling your account or any of its contents to another person.

4.2           When accessing and using WSC, you must not (or encourage Survey Respondents to):

a)    use WSC for any illegal, immoral, unauthorised or dangerous purpose;

b)    use the WSC platform to make any payment to a Survey Respondent (this must be done separately and in accordance with the agreement referred to in clause 6.1);

c)     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 WSC;

d)    interfere with the WSC platform or disrupt any other Survey Creator, Survey Respondent, service or equipment;

e)    do anything which could overburden or impair the proper working or appearance of WSC;

f)      use WSC to publish any material for which you are not the owner of the Intellectual Property Rights in the work or you are not licensed by the owner of the Intellectual Property Rights;

g)    attempt to copy, reproduce, translate, adapt, modify or creative derivative works of the WSC platform; or

h)    cause or permit any other person to engage in any of the activities outlined in this clause 4.2 (e.g. by providing them with access to your computer or by providing password information to them).

4.3           You must use your best endeavours to ensure that any information submitted on WSC:

a)    is not defamatory, libellous, threatening or harassing, or potentially or actually harmful to us or any other person, where harm includes, but is not limited to, economic loss that will or may be suffered by us;

b)     does not infringe the Intellectual Property Rights of any person or entity;

c)     includes all necessary, valid releases (including without limitation moral rights waivers);

d)    does not contain any material that could reasonably be considered to be inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images;

e)    does not contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of any platform, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information; or

f)      is not the subject of any claim, demand, action or legal proceeding or any potential or pending claim, demand, action or legal proceeding.

4.4           If we determine, in our sole discretion, that you have breached an obligation under this clause 4, without limitation we reserve the right to terminate the Agreement in accordance with clause 14.

4.5           Viruses: 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.

5.              OUR RIGHTS

5.1           Without limitation, we reserve the right, in our sole discretion, to do any of the following at our discretion and without having to provide you with any notice:

a)    terminate Projects created by you which we deem to be in breach of this Agreement;

b)    remove content from the WSC platform submitted by you, or a Survey Respondent, that is deemed to be offensive, dangerous, harmful, unlawful or otherwise in breach of this Agreement; or

c)     terminate your account in accordance with clause 14 if we suspect that any conduct that is occurring in connection with the use of your account is unlawful, illegal or is otherwise in breach of this Agreement.

6.              RELATIONSHIP BETWEEN SURVEY CREATOR AND SURVEY RESPONDENT

6.1           You acknowledge and agree that these terms are for our benefit, and that there may be additional terms and conditions introduced by you which regulate your relationship with Survey Respondents separately. Without limitation, these terms and conditions might regulate matters such as participation requirements and payments for Survey Respondents. You must ensure that those terms and conditions are not inconsistent with this Agreement or our terms with Survey Respondents.

6.2           WSC is not a party to any agreement referred to in clause 6.1 and the agreement will be directly between you and the Survey Respondent.

6.3           We make no representation or warranty as to the performance of either party's obligations under such an agreement.

7.              FINANCIAL INFORMATION

7.1           Unless otherwise stipulated by us, any sale of goods or services from the WSC platform is subject to the following conditions:

7.2           Currency: All transactions are in US or Australian Dollars or as otherwise specified on the site. If no currency is specified, then the applicable currency is Australian Dollars. If any amounts are shown in currencies other than Australian Dollars these are only indicative and we may require an adjustment of the price and additional payment to take into account any unfavourable exchange rate variations at the actual time of transaction.

7.3           Credit Card Use: Payments made via the WSC platform will be processed by a third party payment processing organisation. We undertake to use credit card details only as specified by you in relation to purchases made on the WSC platform. We will report any suspicious activity and disclose all relevant evidence to credit card companies and law enforcement authorities.

7.4           Errors in Description or Pricing: Errors may occur in the description or pricing of products or services offered on the site. We may cancel any transaction if any such error occurs, notwithstanding any confirmation of an order or acceptance of payment.

8.              FEES

8.1           The fees for the various services available to you are those which are listed on the WSC platform (which may be amended from time to time). By engaging us to provide a particular service to you, you expressly agree to pay those fees.

8.2           Any fees owing must be paid by you in full within the stated period on our invoice provided in relation to same.

8.3           Unless otherwise stated, all fees are in the currency specified on the WSC platform and all fees, disbursements or other sums payable by you are quoted exclusive of GST or other taxes.   You must pay GST or other taxes in addition to any agreed fee that is GST or tax exclusive.

9.              THIRD PARTY SERVICES

9.1           We may from time to time include Third Party Services on WSC. These Third Party Services are not a request of ours, and are not provided by us.

9.2           Third Party Services are offered to you or Survey Respondents pursuant to the third party provider's terms and conditions. Third Party Services may be promoted on WSC as a convenience to you and/or Survey Respondents who may find the Third Party Services of interest or of use.

9.3           If you or a Survey Respondent chooses to engage with any Third Party Service provider, we are not a party to that agreement and that agreement will be directly between you and/or the Survey Respondent and that Third Party Service provider.

9.4           We make no representation or warranty regarding any Third Party Services, including any representation as to the Intellectual Property Rights of any material available on the Third Party Service or your rights to access, reproduce and use that material. We do not review and monitor any Third Party Services and we are not responsible for the contents, accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any material on any Third Party Service 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 Service 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 Service is entirely at your own risk.

10.           THIRD PARTY MATERIAL

10.1        The WSC platform may include content or references supplied by users or other third parties ("Third Party Material").

10.2        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.

10.3        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.

11.           LINKS FROM OTHER SITES TO WSC

11.1        A Survey Creator may only provide links to WSC (excluding links to specific surveys in Projects) on a separate webpage with our prior written permission.

11.2        Any site that links to WSC (excluding links to specific surveys in Projects) must link to the relevant home page and must not:

a)    replicate WSC's content;

b)    create a browser or border environment around WSC's content;

c)     imply any endorsement by WSC;

d)    misrepresent its relationship with WSC;

e)    present false information about WSC's products and services; or

f)      use our name or logos without our prior written permission.

12.           INTELLECTUAL PROPERTY

12.1        We, our nominees (including Web Creator Trust ABN 29 807 567 261) or third parties own, or are licensed to use, all Intellectual Property Rights in WSC, including without limitation web pages, documents, text, designs, graphics, audio and video that appear on the WSC platform. Unless otherwise expressly stipulated by us, you may only use WSC for your internal business purposes or for personal use and may only print or make an electronic copy of information available on WSC for that purpose. You must not sell or otherwise commercially exploit any information made available on WSC. Nothing in this Agreement gives you any rights, title or interest in any Intellectual Property Rights in WSC. You must ensure that all copyright notices are retained in any material copied from the WSC platform. Subject to this limited right of use, you must not use, download, upload, copy, print, display, broadcast, perform, reproduce, publish, license, post, transmit or distribute any materials from the WSC platform in whole or in part without our prior written permission. If you breach any of the conditions contained in this clause 12.1, then (without limiting your other liabilities) your authorisation to use WSC automatically terminates and you must immediately destroy any downloaded or printed materials.

12.2        We acknowledge that any materials uploaded by you on the WSC platform in which you hold Intellectual Property Rights remain your intellectual property for the duration of the Agreement.

12.3        You grant us an unrestricted, worldwide, royalty-free licence to use any such materials uploaded by you on the WSC platform for the purpose of us providing our services on the WSC platform and as otherwise may be required by us or our nominee to provide the WCS platform.

12.4        You must not submit material to WSC 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 the material you submit to the WSC platform infringes any third party Intellectual Property Rights.

12.5        We grant you an unrestricted, worldwide, royalty-free licence to use, reproduce, modify and adapt any content and information posted by Survey Respondents on WSC, the rights, title and interest in which has been assigned to us.

13.           CONFIDENTIAL INFORMATION

13.1        Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party's Confidential Information is the property of, confidential to or a trade secret of the Disclosing Party.  Subject to clause a), the Receiving Party must:

a)    keep the Disclosing Party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

b)    take all reasonable steps to secure and keep secure all the Disclosing Party's Confidential Information coming into its possession or control;

c)     only use the Confidential Information of the Receiving Party to the extent necessary to perform its obligations under this Agreement; and

d)    not memorise, modify, reverse engineer or make copies, notes or records of the Disclosing Party's Confidential Information for any purpose other than in connection with, and to the extent required for, the performance by the Receiving Party of its obligations under this Agreement.

13.2        The obligations of confidentiality under clause 13.1 do not apply to any information that:

a)    is or becomes generally available to the public (other than by reason of a breach of this Agreement); or

b)    is required to be disclosed by any Applicable Laws or Regulations, or for the purposes of this Agreement (including where you are the Disclosing Party, to a Survey Respondent).

14.           TERMINATION

14.1        Either party may immediately terminate this Agreement at any time by written notice to the other party.

14.2        If we determine at our sole discretion that you have breached, or are likely to breach any of your obligations under this Agreement, we reserve the right to cancel or suspend your account. Any fees owing at the time of termination must be paid to us immediately.

14.3        Sections 8 (Fees), 13 (Confidential Information),14 (Termination), 15 (Limitation of Liability), 16 (Indemnity), 17 (Mediation and Dispute Resolution) and 22 (General) and any other terms which by their nature should continue to apply, will survive termination or expiration of this Agreement.

14.4        If your account or this Agreement is terminated for any reason then you must not without our consent (in our absolute discretion) create any further accounts with us and we may terminate any other accounts you operate.

15.           LIMITATION OF LIABILITY

15.1        Except for any express warranty in this Agreement or any Non-excludable Condition, we exclude any warranties express or implied by any legislation, the common law, or otherwise.

15.2        Except for any liability that cannot be limited or excluded by law or in relation to a breach of any Non-excludable Condition, subject to clause 15.4, our total liability to you is limited to the total amount of payment made by that Survey Creator to us during the twelve month period prior to the first incident causing liability, or $50, whichever is greater.

15.3        Our liability to you for a breach of any Non-excludable Condition (other than a Non-excludable Condition that by law cannot be limited) is limited, at our option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, services in respect of which the breach occurred.

15.4        Except for liability in relation to breach of any Non-excludable Condition, we exclude all liability to you and 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 WSC platform, or arising from your purchase or inability to purchase any goods or services offered on the WSC platform, 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, and any claims by any third person, or this Agreement, even if we knew that loss was possible or the loss was otherwise foreseeable.

15.5        We will not be liable to you for any delay or failure to perform our obligations if such delay or failure is due to a Force Majeure Event.

16.           INDEMMNITY

16.1        You shall be responsible and liable to us (and our directors, officers, employees, independent contractors and agents) for any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, legal fees and court costs (collectively, "Losses"), arising from or related to your use (or any use authorised or facilitated by you) of the WSC platform, including but not limited to any of the following:

a)    your breach of any certification, covenant, obligation, representation or warranty in this Agreement (including a breach of clause 21.2);

b)    violation of any third party right;

c)     any claims that any material submitted or uploaded onto WSC, violates or infringes any third party intellectual property or proprietary rights, or has caused damage to a third party; and

d)    our permitted use of any material (as modified, adapted or enhanced by you where applicable), related trade marks and logos, or images and other materials that you provide to us under this Agreement.

16.2        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 WSC platform.

17.           MODIFICATIONS TO THIS AGREEMENT

17.1        We may modify this Agreement or the Policies (and update the WSC pages on which they are displayed) from time to time. We will send notification of such modifications to your WSC account or advise you the next time you login.

17.2        When you actively agree to the terms (for example, by clicking a button saying "I accept") or use WSC in any manner after the notification referred to in clause 17.1, the modified terms will be effective immediately.  In all other cases, the amended terms will automatically be effective 30 days after they are initially notified to you.

17.3        If you do not agree with any changes to this Agreement (or any of our Policies), you must notify us and we will terminate your WSC account, and you must stop using the WSC platform.

18.           NO AGENCY

18.1        No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular you have no authority to bind us, our related entities or affiliates in any way whatsoever. All Third Party Services that may be promoted on WSC are provided solely by such Third Party Service providers.

19.           NOTICES

19.1        Except as stated otherwise, any notices must be given by registered ordinary post or by email, either to our contact address as displayed on WSC, or to the Survey Respondent's or Survey Creator's contact address as provided at registration (if the notice is directed to them). Any notice shall be deemed given:

a)    if sent by email, 24 hours after email is sent, unless the User is notified that the email address is invalid or the email is undeliverable; and

b)    if sent by pre-paid post, three Business Days after the date of posting, or on the seventh Business Day after the date of posting if sent to or posted from outside Australia. In this section, "Business Day" means a day on which banks are open for general business in Sydney, New South Wales, other than a Saturday, Sunday or public holiday.

19.2        Notices related to performance of any Third Party Service must be delivered to the supplying Third Party as set out in Third Party Service provider terms and conditions.

20.           MEDIATION AND DISPUTE RESOLUTION

20.1        We encourage you to try and resolve disputes with us or Survey Respondents or other Survey Creators directly. Accordingly, you acknowledge and agree that we may, in our absolute discretion, provide your relevant information to other parties involved in the dispute.

20.2        We may offer you access to a Third Party Dispute Service. If persons in a dispute agree to use a Third Party Dispute Service, each person is responsible for paying any costs associated with the Third Party Dispute Service in accordance with the relevant Third Party Dispute Service terms and conditions.

20.3        If we provide information of other Survey Creators or Survey Respondents to you for the purposes of resolving disputes under this clause, you acknowledge and agree that such information will be used only for the purpose of resolving the dispute (and no other purpose) and that you will indemnify us against any claims relating to any other use of information not permitted by this Agreement.

21.           PRIVACY

21.1        Our privacy policy, which is available at www.websurveycreator.com/privacy_policy.aspx applies to all Survey Creators and forms part of this Agreement. Use of the WSC platform confirms that you consent to, and authorise, the collection, use and disclosure of your personal information in accordance with our privacy policy.

21.2        You must ensure that you, and any of your related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)) comply with the Privacy Act 1988 (Cth), including the Australian Privacy Principles, in the performance of your obligations under this Agreement.

21.3        Third Party Service providers will provide their service pursuant to their own privacy policy. Prior to acceptance of any service from a third party, you must review and agree to their terms of service including their privacy policy.

22.           GENERAL

22.1        The WSC platform is administered by us from offices in Sydney, New South Wales Australia. These conditions and your use of the WSC platform 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.

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

22.3        We may assign or novate this Agreement to a third party without your consent. In the event of an assignment or novation, you will remain bound by this Agreement.

22.4        This Agreement sets out the entire understanding and agreement between both parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter.

 

DEFINITIONS

"ACL" means the Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

"Agreement" means the most updated version of the agreement between us and you.

"Applicable Laws and Regulations" means all laws, statutes, regulations, edicts, by-laws, mandatory codes of conduct, standards and guidelines, whether local, national, international or otherwise existing from time to time to which that party is subject and which is relevant to that party’s rights or obligations.

"Consumer Guarantees" means the consumer guarantees contained in Part 3-2 of the ACL.

"Force Majeure Event" affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes, embargos and any power, water or other utility shortage.  For the avoidance of doubt, an event affecting a subcontractor of a party is not beyond the reasonable control of that party unless the event affecting the subcontractor is itself a Force Majeure Event.

"GST" has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

"Intellectual Property Rights" means all intellectual property rights, including:

a)    patents, copyright, rights in circuit layouts, registered designs, trade marks and the right to have confidential information kept confidential; and

b)    any application or right to apply for registration of any of those rights.

"Non-excludable Condition" means any implied condition, warranty or guarantee in a contract, the exclusion of which would contravene the law or cause any part of the contract to be void.  

"Project" means a project created by a Survey Creator on the WSC platform to enable and encourage Survey Respondents to provide responses in relation to a particular topic. to discuss or interact in relation to a particular topic. Such Projects may include, but are not limited to 360 degree surveys, market research surveys, CATI module surveys, face2face touch surveys and other general surveys.

"Survey Creator" means you or the business or organisation that you represent (other than a Survey Respondent).

"Survey Respondent" means a person engaged to participate in Projects created by you on the WSC platform (other than a Survey Creator). 

"Third Party Dispute Service" means a third party dispute resolution service provider used to resolve any disputes between users.

"Third Party Services" means the promotions and links to services offered by third parties as may be featured on WSC from time to time. It includes, without limitation, all translation and/or map location services offered through the WSC platform not under WSC's control or operation.

"WSC" means the Web Survey Creator website at www.websurveycreator.com/default.aspx, WSC tablet (Face2Face iPad app) or smartphone app, and any other affiliated platform, operated by us, that may be introduced from time to time.

Rules of Interpretation:

In the WSC Agreement and all Policies, except where the context otherwise requires:

(a)   the singular includes the plural and vice versa, and a gender includes other genders;

(b)   another grammatical form of a defined word or expression has a corresponding meaning;

(c)   a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d)   a reference to A$, $A, dollar or $ is to Australian currency;

(e)   a reference to time is to the time in New South Wales, Australia;

(f)    a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g)   a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;

(h)   the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(i)    headings are for ease of reference only and do not affect interpretation;

(j)    any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and

(k)   a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.

Survey Respondent Terms and Conditions

Web Survey Creator (WSC) is a service that enables Survey Respondents to engage in, and respond to, surveys in Projects created by Survey Creators on our platform in order to generate qualitative and quantitative market research data.

1.              BACKGROUND

1.1           This is a contract between "you", being a Survey Respondent, and Dipolar Pty Ltd (ACN 081 623 181) ("we", "us" or "our") setting out the terms and conditions that govern your use of, and interaction with, WSC.

1.2           By clicking "I Agree", or otherwise using and interacting with WSC, you agree to:

a)    these terms and conditions, including the glossary; and

b)    our Privacy Policy, available at www.websurveycreator.com/privacy_policy.aspx

together called the "Agreement".

1.3           All defined terms in this Agreement have the meaning given to them in the glossary, located at the end of these Terms and Conditions.

2.              SCOPE OF WSC SERVICE

2.1           We offer Survey Respondents a platform to engage in, and respond to, surveys on Projects created by Survey Creators in order to generate qualitative and quantitative market research data for Survey Creators.

2.2           Your use of any section or component of the WSC platform which is subject to specific conditions (including those imposed by Survey Creators) is subject to your prior acceptance of those specific conditions and you agree to be bound by those specific conditions with respect to your use of the relevant section(s) of the WSC platform even if you choose not to review the specific conditions.

2.3           If you are an individual, you confirm that you are at least 18 years of age, or have parental consent if you are under 18 years of age, to become a Survey Respondent and use WSC.

2.4           At our absolute discretion, we may refuse to allow any person or entity to use WSC.

3.              EXCLUSIONS

3.1           We do not attempt to exclude any conditions, warranties, rights or remedies which you may have pursuant to legislation to the extent that those conditions, warranties, rights and remedies cannot be excluded by agreement ("Non-excludable Conditions").

3.2           Subject to any Non-excludable Conditions and to the extent permitted by law:

a)    the WSC platform 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, freedom from contamination by computer viruses, non-infringement of proprietary rights and the accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any content or other part of the site) are excluded.

3.3           We make no warranty as to the truth or accuracy of any aspect of any information provided by Survey Respondents or Survey Creators on WSC.

3.4           You acknowledge that we do not monitor or control the accuracy, appropriateness or suitability of any content submitted on the WSC platform.

3.5           We have no obligation to any Survey Respondent to assist or involve ourselves in any dispute between Survey Respondents and/or Survey Creators, although we may do so at our discretion in order to improve Survey Respondent and Survey Creator experience.

3.6           You acknowledge that we are not responsible for:

a)    ensuring that the WSC service is suitable for your requirements or is fit for any particular purpose;

b)    any interruption to the WSC service due to technical malfunctions, internet outages, equipment failure, the need for routine maintenance, etc.; and

c)     any software available on the WSC platform that is supplied by third parties.

4.              SURVEY RESPONDENT'S OBLIGATIONS

4.1           When accessing and using WSC, you must:

a)    only access and use WSC as intended through the functionality of the platform;

b)    at all times comply with this Agreement and all Applicable Laws and Regulations; and

c)     promptly apply all applicable updates to the WSC platform that we may issue from time to time.

4.2           When accessing and using WSC, you must not:

a)    use WSC for any illegal, immoral, unauthorised or dangerous purpose;

b)    interfere with the WSC platform or disrupt any other Survey Respondent, service or equipment;

c)     bully, intimidate or harass any other Survey Respondent, Survey Creator or third parties;

d)    do anything which could overburden or impair the proper working or appearance of WSC;

e)    attempt to copy, reproduce, translate, adapt, modify or create derivative works of the WSC platform;

f)      use WSC to publish any material for which you are not the owner of the Intellectual Property Rights in the work or you are not licensed by the owner of the Intellectual Property Rights; or

g)    cause or permit any other person to engage in any of the activities outlined in this clause 4.3 (eg. by providing them with access to your computer or by providing password information to them).

4.3           You represent and warrant that any information submitted on WSC:

a)    is not defamatory, libellous, threatening or harassing, or potentially or actually harmful to us or any other person, where harm includes, but is not limited to, economic loss that will or may be suffered by us;

b)    does not infringe the Intellectual Property Rights of any person or entity;

c)     does not contain any material that could reasonably be considered to be inappropriate or is unlawful, including, but not limited to obscene, inappropriate or unlawful images;

d)    does not contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of any platform, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information; or

e)    is not the subject of any claim, demand, action or legal proceeding or any potential or pending claim, demand, action or legal proceeding.

4.4           If we, or a Survey Creator, determines at its sole discretion that you have breached an obligation under this clause 4, without limitation we reserve the right to terminate the Agreement in accordance with clause 13.  

4.5           Viruses: 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.

4.6           Impersonation: 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 WSC.

5.              OUR RIGHTS

5.1           Without limitation, we reserve the right, in our sole discretion, to do any of the following at our discretion and without having to provide you with any notice:

a)    remove content from the WSC platform submitted by a Survey Respondent that is deemed by us to be offensive, dangerous, harmful, unlawful or otherwise in breach of this Agreement; or

b)    terminate your use of WSC in accordance with clause 13 if we suspect that any conduct that is occurring in connection with your use of WSC is unlawful, illegal or is otherwise in breach of this Agreement.

6.              RELATIONSHIP BETWEEN SURVEY RESPONDENT AND SURVEY CREATOR

6.1           You acknowledge and agree that these terms are for our benefit, and that there may be additional terms and conditions (also referred to in clause 2.2) introduced by the Survey Creator which regulate your relationship with it separately.

6.2           You acknowledge that we are not a party to any agreement referred to in clause 6.1 and the agreement will be directly between you and the Survey Creator.

6.3           We make no representation or warranty as to, and have no obligations regarding, the performance of any party's obligations under such an agreement.

7.              THIRD PARTY SERVICES

7.1           From time to time Third Party Services may be provided on WSC. These Third Party Services are not a request of ours, and are not provided by us. They are provided as a convenience to you and/or our Survey Creators who may find the Third Party Services of interest or of use.

7.2           Third Party Services are offered to Survey Respondents pursuant to the third party provider's terms and conditions.

7.3           If you or a Survey Creator chooses to engage with any Third Party Service provider, you agree that we are not a party to that agreement and that agreement will be directly between you and/or the Survey Creator and that Third Party Service provider.

7.4           We make no representation or warranty regarding any Third Party Services, including any representation as to the Intellectual Property Rights of any material available in relation to the Third Party Service or your rights to access, reproduce and use that material. We do not review and monitor any Third Party Services and we are not responsible for the contents, accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any material on any Third Party Service 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 Third Party Service 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 Service is entirely at your own risk.

8.              THIRD PARTY MATERIAL

8.1           The WSC platform may include content or references supplied by users or other third parties ("Third Party Material").

8.2           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.

8.3           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.

9.              LINKS FROM OTHER SITES TO WSC

9.1           A Survey Respondent may only provide links to WSC on a separate webpage with our prior written permission.

9.2           Any site that links to WSC must link to the relevant home page and must not:

a)    replicate WSC's content;

b)    create a browser or border environment around WSC's content;

c)     imply any endorsement by WSC;

d)    misrepresent its relationship with WSC;

e)    present false information about WSC's products and services; or

f)      use our name or logos without our prior written permission.

10.           INTELLECTUAL PROPERTY

10.1        We, our nominees (including Web Creator Trust ABN 29 807 567 261) or third parties own, or are licensed to use, all Intellectual Property Rights in WSC, including without limitation web pages, documents, text, designs, graphics, audio and video that appear on the WSC platform. Unless otherwise expressly stipulated by us, you may only use WSC for your internal business purposes or for personal use and may only print or make an electronic copy of information available on WSC for that purpose. You must not sell or otherwise commercially exploit any information made available on WSC. Nothing in this Agreement gives you any rights, title or interest in any Intellectual Property Rights in WSC. You must ensure that all copyright notices are retained in any material copied from the WSC platform. If you breach any of the conditions contained in this clause 10.1, then (without limiting your other liabilities) your authorisation to use WSC automatically terminates and you must immediately destroy any downloaded or printed materials.

10.2        By posting any materials or opinions on the WSC platform, you hereby assign all right, title and interest (including any Intellectual Property Rights) in any such materials to us or our nominee at our discretion (which may include a Survey Creator).

10.3        You must not submit material to WSC 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 the material you submit to the WSC platform infringes any third party Intellectual Property Rights.

11.           CONFIDENTIAL INFORMATION

11.1        Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party's Confidential Information is the property of, confidential to or a trade secret of the Disclosing Party.  The Receiving Party must:

a)    keep the Disclosing Party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

b)    take all reasonable steps to secure and keep secure all the Disclosing Party's Confidential Information coming into its possession or control;

c)     only use the Confidential Information of the Receiving Party to the extent necessary to perform its obligations under this Agreement; and

d)    not memorise, modify, reverse engineer or make copies, notes or records of the Disclosing Party's Confidential Information for any purpose other than in connection with, and to the extent required for, the performance by the Receiving Party of its obligations under this Agreement.

11.2        The obligations of confidentiality under clause 11.1 do not apply to any information that:

a)    is or becomes generally available to the public (other than by reason of a breach of this Agreement); or

b)    is required to be disclosed by any Applicable Laws or Regulations, or for the purposes of this Agreement (including in circumstances where you are the Disclosing Party, to a Survey Creator).

12.           TERMINATION

12.1        Either party may immediately terminate this Agreement at any time by written notice to the other party.

12.2        Upon termination by you in accordance with clause 12.1, we will notify the Survey Creator and request that they remove your details from the Project. However, the Survey Creator's collection, use and retention of your details will ultimately be governed by the agreement between you and the Survey Creator referred to in clause 6.1.

12.3        If we determine at our sole discretion that you have breached, or are likely to breach any of your obligations under this Agreement, we reserve the right to immediately cancel or suspend your use of the WSC platform.

12.4        Sections 11 (Confidential Information), 12 (Termination), 13 (Limitation of Liability), 14 (Indemnity), 18 (Mediation and Dispute Resolution) and 20 (General) and any other terms which by their nature should continue to apply, will survive termination or expiration of this Agreement.

12.5        If this Agreement is terminated for any reason then we reserve the right to exclude you from using the WSC platform at any time in the future.

13.           LIMITATION OF LIABILITY

13.1        Except for any express warranty in this Agreement or any Non-excludable Condition, we exclude any warranties express or implied by any legislation, the common law, or otherwise.

13.2        Except for liability in relation to a breach of any Non-excludable Condition, subject to clause 13.4, our total liability to you is limited to $1.

13.3        Our liability to you for a breach of any Non-excludable Condition (other than a Non-excludable Condition that by law cannot be limited) is limited, at our option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, services in respect of which the breach occurred.

13.4        Except for liability in relation to breach of any Non-excludable Condition, we exclude all liability to you and 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 WSC platform, or arising from your inability to participate in any competition or other promotion offered by a Survey Creator 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, and any claims by any third person, or this Agreement, even if we knew that loss was possible or the loss was otherwise foreseeable,

13.5        We will not be liable to you for any delay or failure to perform our obligations if such delay or failure is due to a Force Majeure Event

14.           INDEMNITY

14.1        You shall be responsible and liable to us (and our directors, officers, employees, independent contractors and agents) for any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, legal fees and court costs (collectively, "Losses"), arising from or related to your use (or any use authorised or facilitated by you) of the WSC platform, including but not limited to any of the following:

a)    your breach of any certification, covenant, obligation, representation or warranty in this Agreement;

b)    violation of any third party right;

c)     any claims that any material submitted or uploaded onto the WSC platform violates or infringes any third party Intellectual Property Rights, or has caused damage to a third party; and

d)    our permitted use of any material (as modified, adapted or enhanced by you where applicable), related trade marks and logos, or images and other materials that you provide to us under this Agreement.

14.2        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 WSC platform.

15.           MODIFICATIONS TO THE AGREEMENT

15.1        We may modify this Agreement or the Policies (and update the WSC pages on which they are displayed) from time to time. We will advise you the next time you use the WSC platform.

15.2        When you actively agree to the terms (for example, by clicking a button saying "I accept") or use WSC in any manner after the notification referred to in clause 15.1, the modified terms will be effective immediately.  In all other cases, the amended terms will automatically be effective 30 days after they are initially notified to you.

15.3        If you do not agree with any changes to this Agreement (or any of our Policies), you must stop using the WSC platform.

16.           NO AGENCY

16.1        No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular you have no authority to bind us, our related entities or affiliates in any way whatsoever. All Third Party Services that may be promoted on the WSC platform are provided solely by such Third Party Service providers.

17.           NOTICES

17.1        Except as stated otherwise, any notices must be given to Survey Respondents on the WSC platform. Any notice shall be deemed given when the Survey Respondent actively agrees to the notice (for example, by clicking a button saying "I accept") or by using WSC in any manner after receipt of such notification.   

17.2        Notices related to performance of any Third Party Service must be delivered to the supplying Third Party as set out in Third Party Service Provider terms and conditions.

18.           MEDIATION AND DISPUTE RESOLUTION

18.1        We encourage you to try and resolve disputes with us or the relevant Survey Creators directly. Accordingly, you acknowledge and agree that we may, in our absolute discretion, provide your relevant information to other parties involved in the dispute.

18.2        We may offer you access to a Third Party Dispute Service. If persons in a dispute agree to use a Third Party Dispute Service, each such person is responsible for paying any costs associated with the Third Party Dispute Service in accordance with the relevant Third Party Dispute Service terms and conditions.

18.3        If we provide any information to you for the purposes of resolving disputes under this clause, you acknowledge and agree that such information will be used only for the purpose of resolving the dispute (and no other purpose) and that you will indemnify us against any claims relating to any other use of information not permitted by this Agreement.

19.           PRIVACY

19.1        Our privacy policy, which is available at www.websurveycreator.com/privacy_policy.aspx applies to all Survey Respondents and forms part of this Agreement. Use of the WSC platform confirms that you consent to, and authorise, the collection, use and disclosure of your personal information in accordance with our privacy policy.

19.2        Third Party Service providers may provide their service pursuant to their own privacy policy. Prior to acceptance of any service from a third party, you must review and agree to their terms of service including their privacy policy.

20.           GENERAL

20.1        The WSC platform is administered by us from offices in Sydney, New South Wales Australia. These conditions and your use of the WSC platform 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.

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

20.3        We may assign or novate this Agreement to a third party without your consent. In the event of an assignment or novation, you will remain bound by this Agreement.

20.4        This Agreement sets out the entire understanding and agreement between both parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter.

DEFINITIONS

"ACL" means the Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

"Agreement" means the most updated version of the agreement between us and you.

"Applicable Laws and Regulations" means all laws, statutes, regulations, edicts, by-laws, mandatory codes of conduct, standards and guidelines, whether local, national, international or otherwise existing from time to time to which that party is subject and which is relevant to that party’s rights or obligations.

"Force Majeure Event" affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes, embargos and any power, water or other utility shortage.  For the avoidance of doubt, an event affecting a subcontractor of a party is not beyond the reasonable control of that party unless the event affecting the subcontractor is itself a Force Majeure Event.

"Intellectual Property Rights" means all intellectual property rights, including:

a)    patents, copyright, rights in circuit layouts, registered designs, trade marks and the right to have confidential information kept confidential; and

b)    any application or right to apply for registration of any of those rights.

"Non-excludable Condition" means any implied condition, warranty or guarantee in a contract, the exclusion of which would contravene the law or cause any part of the contract to be void.

"Project" means a project created by a Survey Creator on the WSC platform to enable and encourage Survey Respondents to provide responses in relation to a particular topic. Such Projects may include, but are not limited to 360 degree surveys, market research surveys, CATI module surveys, face2face touch surveys and other general surveys.  

"Survey Creator" means a person or business creating Projects on the WSC platform for use and engagement by Survey Respondents.

"Survey Respondent" means you and any third party survey respondent on the WSC platform (other than a Survey Creator).

"Third Party Dispute Service" means a third party dispute resolution service provider used to resolve any disputes between users.

"Third Party Services" means the promotions and links to services offered by third parties as may be featured on WSC from time to time. It includes, without limitation, all translation and/or map location services offered through the WSC platform not under WSC's control or operation.

"WSC" means the Web Survey Creator website at www.websurveycreator.com/default.aspx, WSC smartphone app, and any other affiliated platform, operated by us, that may be introduced from time to time.

Rules of Interpretation:

In the WSC Agreement and all Policies, except where the context otherwise requires:

(a)   the singular includes the plural and vice versa, and a gender includes other genders;

(b)   another grammatical form of a defined word or expression has a corresponding meaning;

(c)   a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d)   a reference to A$, $A, dollar or $ is to Australian currency;

(e)   a reference to time is to the time in New South Wales, Australia;

(f)    a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g)   a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;

(h)   the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(i)    headings are for ease of reference only and do not affect interpretation;

(j)    any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and

(k)   a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.