Effective starting: July 1, 2018
Terms and Conditions
Thanks for using 65 Bits.
Please read these Terms carefully. By using 65 Bits or signing up for an account, you’re agreeing to these Terms. This is a legal agreement. We’ll start with the basics, including a few definitions that should help you understand this agreement.
65 Bits ("65 Bits" or the "Service") is a Software-As-A-Service system that allows managers at organisations to create, send and manage surveys to employees, and collate their responses for analytical study and sharing, as well as any other features introduced from time-to-time.
65 Bits is owned and operated by 65 Bits Pty Ltd, an Australian Proprietary Limited (Pty Ltd) Company ("65 Bits," "we," or "us"). 65 Bits has employees, independent contractors, and representatives ("our Team"). As a customer of the Service or a representative or employee of an entity that’s a customer of the Service, you’re a "User" according to this agreement (or "you").
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data" means any data inputted by You or with Your authority into the Website, or data acquired via your authorisation (including your transaction information).
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Service" means the services described and provided by the https://www.65bits.com.au Website, whether accessed directly, or through third party applications.
"Website" means the Internet site at the domain https://www.65bits.com.au or any other site operated by 65 Bits.
"User" means the registered user for the Service, and, where the context permits, includes any entity on whose behalf that person registers to use this Service.
"You" means the Ordinary User and / or Subscriber, where the context permits. "Your" has a corresponding meaning.
A - PARTIES
A.1 These Terms of Service form an agreement (Agreement) between 65 Bits and the user (User).
C - THE SERVICE
C.1 65 Bits own and operate the 65 Bits service (Service) made available via the website https://www.65bits.com.au (Website), which allows Users to create, send and manage surveys to employees, and collate their responses for analytical study and sharing, as well as any other features introduced from time-to-time.
D - REGISTRATION AND PLANS
D.1 In order to access the 65 Bits Service, users must register as a User.
D.2 65 Bits may, at its sole discretion, offer new Users a free trial of the 65 Bits Service (Free Trial), for such period as 65 Bits may at its sole discretion determine. 65 Bits may amend or withdraw Free Trials at any time for any reason. If a User wishes to continue using the 65 Bits Service after the end of any Free Trial, it must enter into a paid subscription. A maximum of one free trial per user is allowed.
D.3 Users may subscribe to access the 65 Bits Service under various plans (Plans) offered by 65 Bits. Different Plans have different usage and other limits (Plan Limits). Details of Plans and Plan Limits are set out on our website.
D.4 The Plan Term shall commence on the date of subscription for a Plan and end on the last day of the term of the Plan selected during the checkout process (Initial Term). Unless either 65 Bits or the User notifies the other that it does not wish to renew the Plan, and subject to clause I.2, the Plan Term will automatically renew for further periods equal to the Initial Term at the end of the current term.
E - PROVISION OF 65 Bits SERVICE
E.1 During the Plan Term, subject to E.2, 65 Bits will provide the User with access to the 65 Bits Service.
E.2 The Plan Limits applicable to the relevant Plan will apply to the User's access to the 65 Bits Service.
E.3 In the event that the User exceeds any Plan Limit, the Fees will be adjusted at the start of the next billing period to take into account such excess usage. Such increased Fees shall apply for all subsequent billing periods.
F - RESERVATIONS AND LIMITATIONS ON USE
F.1 Age. Only persons over the age of 18 may register as a User.
F.2 Fair use. The User agrees that it shall only use the 65 Bits Service and 65 Bits API for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by 65 Bits in its discretion. 65 Bits may terminate a User's access to the 65 Bits Service and 65 Bits API if 65 Bits considers that the User is in breach of this clause.
F.3 Team Members. Users may invite their employees and consultants (Team Members) to use the 65 Bits service. Users are not permitted to share accounts with other companies or unrelated persons. 65 Bits may terminate a User's access and/or a Team Member's access to the 65 Bits Service and 65 Bits API if 65 Bits considers that the User or Team Member is in breach of this clause.
F.4 65 Bits reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the 65 Bits Service and/or 65 Bits API. 65 Bits will not make changes that materially reduce the functionality of the 65 Bits Service provided to the User during the Plan Term.
G - THIRD-PARTY SERVICES
G.1 Users may be able to use their 65 Bits account to receive and/or push Data from and/or to certain third party services (TPS).
G.2 Users may disable the receive/push functionality between the 65 Bits Service and the TPS at any time.
G.3 65 Bits has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
H - FEES AND CHARGES
(a) The User shall pay such fees as may apply to their Plan as described on the Site from time-to-time (Fees).
(b) 65 Bits may change any Fees at any time by giving the Business User one (1) months' notice. These changes will become effective when the User next makes a payment.
All Fees are payable in advance. Payments must be made through the Site using the Site's designed payment systems, unless agreed directly with 65 Bits. Access to the 65 Bits Service and 65 Bits API may be withheld by 65 Bits until funds have cleared.
All transactions are processed in US dollars.
Fees are exclusive of taxes, which 65 Bits will charge as applicable. If GST is applicable to any payment by a User to 65 Bits then:
(a) The fee is inclusive of GST; and
(b) 65 Bits will provide the User with a Tax Invoice for its payment.
If a User are required to deduct or withhold any tax, the User must pay the amount deducted or withheld as required by law and pay 65 Bits an additional amount so that 65 Bits receive payment in full as if there were no deduction or withholding.
No refunds are offered other than as required by law.
I - GENERAL
You agree that:
(i) These Terms and Conditions are governed by the laws of the Western Australia, Australia, and you irrevocably submit to the exclusive jurisdiction of the courts of the State of Western Australia; and
(ii) (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over 65 Bits, either specific or general, in jurisdictions other than Western Australia, Australia.
1 - INTERPRETATION
1.1 The following definitions apply in this document:
(a) Data means any data provided by a recipient of any poll or survey sent by the User, including (without limitation):
i Comments or ratings as answers to survey questions sent by the User
ii Customer, usage or other data from any third party party service; and/or
iii Data provided directly by the User.
(b) The Service is provided to you by 65 Bits without advice. It is not intended to provide human resource, legal or business advice.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Western Australia.
(d) General Conditions means the terms and conditions set out in the section of this agreement entitled "General Conditions".
(e) Intellectual Property means all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
(f) Particulars means this agreement's details and variables set out in the section of this agreement entitled "Particulars".
(h) Special Conditions means any special conditions agreed in writing between 65 Bits and a User.
1.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this agreement.
(d) A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) A reference to a party to this agreement or another agreement or document includes that party's successors and permitted substitutes and assigns (and, where applicable, the party's legal personal representatives).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
(i) A reference to dollars or $ is to an amount in US currency.
2 - APPLICATION
2.1 This Agreement applies to use of and access to the 65 Bits Service and 65 Bits API.
2.2 The terms & conditions of this Agreement may be updated by 65 Bits in its absolute discretion from time-to-time, and unless stated otherwise by 65 Bits in writing, such updates shall come into effect for use of the 65 Bits Service at the time the User is sent notice of the update(s).
3 - 65 Bits SERVICE
3.1 The 65 Bits Service is only accessible to the User for any Free Trial and the Plan Term.
3.2 The User agrees and accepts that the functional elements of the 65 Bits Service may be:
(a) hosted by 65 Bits and shall only be installed, accessed and maintained by 65 Bits, accessed using the internet or other connection to 65 Bits servers and is not available 'locally' from the User's systems; and
(b) managed and supported exclusively by 65 Bits from 65 Bits servers and that no 'back-end' access to the 65 Bits Service is available to the User unless expressly agreed in writing.
(c) As a hosted and managed service, 65 Bits reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the 65 Bits API.
4 - AUTHORISED TEAM MEMBERS
4.1 The User is solely responsible for the security of its username, password and API access token (if applicable) for access to the 65 Bits Service and 65 Bits API.
4.2 The User is responsible for ensuring that Team Members authorised to use the 65 Bits Service or 65 Bits API comply with this Agreement in full. The User shall be liable for any breach by a Team Member of any term of this Agreement.
6 - INVOICING & PAYMENTS
6.1 65 Bits shall issue the User an invoice for all payments made by the User to 65 Bits.
6.2 The terms of payment set out in the Particulars shall apply.
6.3 Refunds are provided for in accordance with the Particulars or as required by law.
7 - DATA SECURITY
7.1 65 Bits takes the security of the 65 Bits Service and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of 65 Bits's systems or the information on them.
8 - ACCESS
(a) By accepting the terms of this Agreement the User agrees that 65 Bits shall provide access to the 65 Bits Service and 65 Bits API to the best of its abilities, however it accepts no responsibility for ongoing access to the 65 Bits Service or 65 Bits API; and
(b) 65 Bits shall have permission to access their 65 Bits account for the sole purpose of providing support and resolving issues within the 65 Bits Service
9 - INTELLECTUAL PROPERTY
(a) 65 Bits has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of 65 Bits.
9.2 Proprietary Information. The 65 Bits Service and 65 Bits API may use software and other proprietary systems and Intellectual Property for which 65 Bits has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the 65 Bits Service or 65 Bits API.
9.3 Service. The User agrees and accepts that the 65 Bits Service and 65 Bits API are the Intellectual Property of 65 Bits and the User further warrants that by using the Service the User will not:
(a) copy the 65 Bits Service and 65 Bits API or the services that they provide for the User's own commercial purposes; and
(b) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the 65 Bits Service or 65 Bits API or any documentation associated with it.
10 - USE OF USER NAME, LOGO AND TRADEMARKS
10.1 Unless agreed otherwise in writing, the User grants to 65 Bits a non-exclusive, non-transferable, royalty-free licence to use the User’s name, logo and/or trademarks in connection with the promotion of 65 Bits and the 65 Bits Service.
11 - LIABILITY & INDEMNITY
11.1 To the extent permitted by law, both 65 Bits and the User agree that:
(a) Neither party will be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss that the other party may suffer or incur in connection with the 65 Bits Service or 65 Bits API, whether or not the party knew or should have known of the possibility of such loss; and
(b) For the avoidance of doubt, neither party will indemnify the other party with respect to any loss suffered or incurred by the other party in connection with the 65 Bits Service or 65 Bits API (other than in respect of a breach of this Agreement).
11.2 Notwithstanding clause 11.1, the User may have rights under statutory consumer protection laws including the Competition and Consumer Act 2010 (Cth). The disclaimer of warranties and liability limitations in this Agreement apply subject to any rights the User may have under such laws. If such laws apply, to the extent to which 65 Bits is entitled to do so, 65 Bits limits its liability in respect of any claim under such provisions to:
(a) in the case of goods, at 65 Bits’s option:
i the replacement of the good or the supply of equivalent goods;
ii the repair of the goods;
iii the payment of the cost of replacing the goods or of acquiring equivalent good; or
iv the payment of the cost of having the goods repaired; and
(b) in the case of services, at 65 Bits’s option:
i the supply of the services again or the payment of the cost of having the services supplied again.
11.3 The User agrees that it and its Team Members uses the 65 Bits Service and 65 Bits API at their own risk.
11.4 The User acknowledges that 65 Bits is not responsible for the conduct or activities of any Team Member and that 65 Bits is not liable for such under any circumstances.
11.5 Despite anything else in this Agreement, both 65 Bits and the User’s liability to each other is limited in all circumstances to the value of one month’s fees under the Plan to which the User has subscribed.
12 - SUSPENSION AND TERMINATION
12.1 65 Bits may revoke or suspend the User's access to the 65 Bits Service and 65 Bits API for breach of the terms and conditions in this Agreement by the User or any of its Team Members. 65 Bits will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
12.2 On termination of this Agreement for any reason, the User's access to the 65 Bits Service and 65 Bits API shall cease.
12.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
13 - DISPUTES
13.1 For any dispute between 65 Bits and the User, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or if discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this agreement is not resolved within five Business Days of notification of the dispute under clause (a), the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this agreement is not settled by mediation under clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages would otherwise be inadequate to compensate.
14 - NOTICES
14.1 The User can direct notices, enquiries, complaints and so forth to 65 Bits as set out in this Agreement or on the Site. 65 Bits will notify the User of a change of details from time-to-time.
14.2 65 Bits will send the User notices and other correspondence to the details that the User submits to 65 Bits on registration, or that the User notifies 65 Bits of from time-to-time. It is the User's responsibility to update its contact details as they change.
14.3 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
15 - ASSIGNMENT
15.1 The User may only assign or otherwise create an interest in their rights under this Agreement with the written consent of 65 Bits.
15.2 65 Bits may assign or otherwise create and interest in their rights under this Agreement by giving the User written notice.
16 - GENERAL
16.1 Formation. This Agreement is formed when the User acknowledges their consent to this Agreement, whether done electronically or physically.
16.2 Prevalence. Each party to this Agreement agrees to the clauses in the Particulars, the Special Conditions (if any) and the General Conditions. The Particulars, Special Conditions and the General Conditions form a single legal agreement. To the extent that the Particulars or the Special Conditions are inconsistent with the General Conditions, the terms of the Particulars will prevail. To the extent that the Special Conditions are inconsistent with the Particulars, the Special Conditions will prevail.
16.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
16.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
16.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
16.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
16.7 Governing Law. This Agreement is governed by the laws of the state set out in item J of the Particulars. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
16.8 Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
16.9 Inconsistency. If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
16.10 Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
16.11 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.