Your relationship with Smart Sparrow
Your use of Smart Sparrow’s products, software, services and web sites (the “Services”) is subject to the terms of this legal agreement between you and Smart Sparrow. “Smart Sparrow” means Smart Sparrow Pty Ltd of Suite 5B, 116-122 Kippax Street, Surry Hills, NSW, Australia. This document sets out the terms of that agreement. Unless otherwise agreed in writing with Smart Sparrow, your agreement with Smart Sparrow will always include the terms and conditions set out in this document, and the terms of any Legal Notices applicable to the Services which will be accessible for you to read either within, or through your use of, that Service (collectively, the “Terms”).
Accepting the Terms
In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms. You can accept the Terms by:
- clicking to accept or agree to the Terms, where this option is made available to you by Smart Sparrow in the user interface for any Service; or
- by actually using the Services. In this case, you understand and agree that Smart Sparrow will treat your use of the Services as acceptance of the Terms from that point onwards.
You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Smart Sparrow, or (b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
Provision of the Services by Smart Sparrow
The Services are provided entirely under a Software-as-a-Service (SAAS) delivery model. Smart sparrow aims to provide 99% platform uptime for the Services. In the event of downtime and/or lack of access to the Services, we shall correct such loss or interruption as quickly as practicable.
You acknowledge and agree that:
- Subsidiaries and Affiliates of Smart Sparrow will be entitled to provide the Services to you.
- the form and nature of the Services which Smart Sparrow provides may change from time to time without prior notice to you.
- Smart Sparrow may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Smart Sparrow’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Smart Sparrow when you stop using the Services.
- If Smart Sparrow disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
- While Smart Sparrow may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Smart Sparrow at any time, at Smart Sparrow’s discretion.
Your use of the Services
In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Smart Sparrow will always be accurate, correct and up to date. You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from any relevant countries). You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Smart Sparrow, unless you have been specifically allowed to do so in a separate agreement with Smart Sparrow. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers). You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Unless you have been specifically permitted to do so in a separate agreement with Smart Sparrow, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. You agree that you are solely responsible for (and that Smart Sparrow has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Smart Sparrow may suffer) of any such breach.
Your password and account security
You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services, and you agree that you will be solely responsible to Smart Sparrow for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Smart Sparrow immediately at firstname.lastname@example.org.
Privacy and your personal information
If you’d like to know more about data protection generally, there is information available from the Australian Information Commissioner at the following website – www.oaic.gov.au.
By signing up to Smart Sparrow, you are opting-in to receive Smart Sparrow newsletters and other special offer emails. If you do not wish to receive these emails, you may opt-out at any time, by unsubscribing using the link at the bottom of all newsletters and other special offer emails.
By signing up to Smart Sparrow, you agree to receive communications from Smart Sparrow for membership management and/or administrative purposes, such as membership confirmation, profile information validation and other similar reasons. Communication may come in the form of e-mail, phone calls, and/or postal mail. You cannot opt-out of receiving these communications, unless you terminate your subscription with Smart Sparrow.
You will at all times be the owner of the content created by you using the Services unless otherwise agreed in writing (see also the next section). To that end, you will be solely responsible for maintaining the accuracy and integrity of your content. Smart Sparrow shall under no circumstance have any responsibility or liability whatsoever with respect to your content.
You will have the ability to delete your content through the options provided by the Services. Despite this, your content may still be stored by the Services, backup tapes, drives, and/or other backup media. Smart Sparrow has no responsibility to attempt to recover deleted Content.
You acknowledge and agree that Smart Sparrow (or Smart Sparrow’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Smart Sparrow and that you shall not disclose such information without Smart Sparrow’s prior written consent. Unless you have agreed otherwise in writing with Smart Sparrow, nothing in the Terms gives you a right to use any of Smart Sparrow’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
Smart Sparrow acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any content that you submit, post, develop, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that you are responsible for protecting and enforcing those rights and that Smart Sparrow has no obligation to do so on your behalf.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services. Unless you have been expressly authorized to do so in writing by Smart Sparrow, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.
The Software which you use may automatically download and install updates from time to time from Smart Sparrow. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Smart Sparrow to deliver these to you) as part of your use of the Services.
Payments and Refunds
Smart Sparrow are pleased to provide our Services on a number of flexible licensing models, including free trial, monthly subscriptions with no lock-in, and annual licenses with standard termination provisions.
Free Online Accounts
Free accounts require no payment and users are not required to provide credit card details.
Paid Monthly Subscriptions
Users with free accounts may upgrade to any paid plan, at which time your credit card details will immediately be charged. All online subscriptions must be paid for with a valid credit card. Your credit card will be automatically charged monthly in advance, and this payment is non-refundable.
There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
Changing Payment Plans
To cancel or change your monthly subscription, or upgrade to an annual license, please email email@example.com. For any upgrade or downgrade in plan level while on a monthly billing cycle, the credit card that you provided will automatically be charged the new rate on your next billing cycle.
Ending your relationship with Smart Sparrow
The Terms will continue to apply until terminated by either you or Smart Sparrow as set out below. If you want to terminate your legal agreement with Smart Sparrow, you may do so by (a) notifying Smart Sparrow at any time and (b) closing your accounts for all of the Services which you use, where Smart Sparrow has made this option available to you. Your notice should be sent, in writing, to Smart Sparrow’s address which is set out at the beginning of these Terms. Smart Sparrow may at any time, terminate its legal agreement with you if:
- you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
- Smart Sparrow is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
- the partner with whom Smart Sparrow offered the Services to you has terminated its relationship with Smart Sparrow or ceased to offer the Services to you; or
- Smart Sparrow is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
- the provision of the Services to you by Smart Sparrow is, in Smart Sparrow’s opinion, no longer commercially viable.
When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Smart Sparrow have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation.
Exclusion of warranties
Nothing in these terms shall exclude or limit Smart Sparrow’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law. Only the limitations which are lawful in your jurisdiction will apply to you and our liability will be limited to the maximum extent permitted by law. You expressly understand and agree that your use of the services is at your sole risk and that the services are provided “as is” and “as available.” In particular, Smart Sparrow, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that:
- your use of the services will meet your requirements,
- your use of the services will be uninterrupted, timely, secure or free from error,
- any information obtained by you as a result of your use of the services will be accurate or reliable, and
- that defects in the operation or functionality of any software provided to you as part of the services will be corrected.
Any material downloaded or otherwise obtained through the use of the services is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or other device or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from Smart Sparrow or through or from the services shall create any warranty not expressly stated in the terms. Smart Sparrow further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
Limitation of liability
You understand and agree that Smart Sparrow, its subsidiaries and affiliates, and its licensors shall not be liable to you for:
- Any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss;
- Any loss or damage which may be incurred by you, including but not limited to loss or damage as a result of:
- any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the services;
- any changes which Smart Sparrow may make to the services, or for any permanent or temporary cessation in the provision of the services (or any features within the services);
- the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the services;
- your failure to provide Smart Sparrow with accurate account information;
- your failure to keep your password or account details secure and confidential;
The limitations on Smart Sparrow’s liability to you in paragraph 1 above shall apply whether or not Smart Sparrow has been advised of or should have been aware of the possibility of any such losses arising.
The Services may include hyperlinks to other web sites or content or resources. Smart Sparrow may have no control over any web sites or resources which are provided by companies or persons other than Smart Sparrow. You acknowledge and agree that Smart Sparrow is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources. You acknowledge and agree that Smart Sparrow is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
Changes to the Terms
Smart Sparrow may make changes to the Terms from time to time, and will make a new copy of the Terms available at smartsparrow.com/terms, and any new additional terms will be made available to you from within, or through, the relevant Services. You understand and agree that if you use the Services after the date on which the Terms have changed, Smart Sparrow will treat your use as acceptance of the updated Terms.
General legal terms
Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals. The Terms constitute the whole legal agreement between you and Smart Sparrow and govern your use of the Services (but excluding any services which Smart Sparrow may provide to you under a separate written agreement), and completely replace any prior agreements between you and Smart Sparrow in relation to the Services. You agree that Smart Sparrow may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services. You agree that if Smart Sparrow does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Smart Sparrow has the benefit of under any applicable law), this will not be taken to be a formal waiver of Smart Sparrow’s rights and that those rights or remedies will still be available to Smart Sparrow. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable. You acknowledge and agree that each member of the group of companies of which Smart Sparrow is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms. The Terms, and your relationship with Smart Sparrow under the Terms, shall be governed by the laws of New South Wales, Australia, without regard to its conflict of laws provisions. You and Smart Sparrow agree to submit to the exclusive jurisdiction of the courts located within New South Wales, Australia, to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Smart Sparrow shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
12 April 2013