Terms & Conditions

Last updated July 2021

These Insightech Terms of Use (this “Agreement”) are entered into by Insightech Pty Ltd (“Insightech”) and entity executing this Agreement (“You”). These Terms of Use govern Your access to and use of the Insightech products and services (the “Services”), and any information, text, graphics, social profiles or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Data”). Insightech grants You access to and use of the Services for which You have a valid and current license only on the condition that You, a user of the Services, accept all of the terms contained or referenced in these Terms of Use.

1. Acceptance of Terms of Use by You

1. By completing the registration process, or using the services, You acknowledge that You have reviewed and accept this agreement and are authorized to act on behalf of, and bind to this agreement, the owner of this account.

2. These Terms of Use will have the same effect as any written negotiated agreement signed by You.

3. You may not use the Services if You are:

   1. prohibited by law, regulation, or generally accepted practices or guidelines in any applicable jurisdiction (“Law”) from receiving or using the Services; or
   2. not fully able and competent to enter into a binding contract with Insightech, such as if you are not of legal age or have not obtained parental consent. In particular You affirm that You are over the age of 13 and acknowledge that these Services are not intended for children under 13.

4. Insightech reserves the right to amend or change these terms at any time. Any such modifications shall be effective immediately upon being posted to the site.

2. Rights of Insightech

1. All right, title, and interest in and to the Services (excluding Data provided by You) are and will remain the exclusive property of Insightech and its licensors.

2. The Services are protected by copyright, trademark, and other laws of both Australia and foreign countries. You will not use Insightech name or any of the Insightech trademarks, logos, domain names and other distinctive brand features.

3. Insightech reserves all intellectual property rights, including, but not limited to, copyright in the Services.

3. Non Exclusive License

1. Insightech hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Insightech Code (“IC”) solely as necessary to use the Services for one or more web pages or domains that You own and/or control (collectively, the “Website”) pursuant to your Subscription Plan and the terms of this Agreement.

2. You agree that You will not, nor will You allow any third party to:

   1. copy, modify, adapt, translate or otherwise create derivative works of the Services;
   2. reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services;
   3. rent, lease, sell, assign, sublicense or otherwise transfer rights in the Services;
   4. remove any proprietary notices or labels on the Services or placed by the Services;
   5. use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; or
   6. use the Services for illegal purposes.

3. You will use the Services solely for your own internal use, and will not:

   1. make the Services available for timesharing, application service provider or service bureau use;
   2. use the Services outside of the scope of the license granted hereunder;
   3. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; and/or
   4. send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. You will comply with all applicable laws and regulations in your use of and access to the Services.

4. Subscription, Account and Cancellation

1. To access and use the Services, You must choose an appropriate Subscription Plan and set up an Account. When setting up your Account You must provide current, complete and accurate information. You will at all times be responsible for maintaining the security of your Account. You shall take all necessary steps to protect your Account password from disclosure. You are fully responsible for your own and third party use of your Account. Insightech will not be liable for any loss and/or damage resulting from your failure to comply with this section. You agree to notify Insightech immediately upon learning of any unauthorized use of your Account or any other breach of security.

2. If You sign up for a pay Subscription Plan you shall pay Insightech the fees for your Subscription Plan (the “Subscription Plan Fees”) in advance unless otherwise explicitly specified in your Order Form. Any fees unpaid by You by the due date shall thereafter bear interest at the rate of one and half percent (1.5%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid.

3. All amounts owed to Insightech are non-cancellable and fees paid are non-refundable except as explicitly stated otherwise in writing.

4. Insightech may use various billing service providers. When using such provider’s services, You agree to follow and comply with the policies of such provider.

5. All fees payable hereunder, do not include local, state, or federal sales, use, excise, personal property, GST, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by You. For the avoidance of doubt, You shall not be responsible for any payment of taxes based on Insightech’s net income.

6. This Agreement shall be in force until your subscription expires or is terminated pursuant to the terms herein. At the end of the subscription period specified in your Subscription Plan, your Subscription Plan will be automatically renewed unless otherwise explicitly stated in an Order Form or if terminated pursuant to the terms herein.

7. If you wish to terminate your subscription prior to the renewal of your Subscription Plan then You may do so by contacting Insightech for Account cancellation. When You cancel your subscription, your Subscription Plan will remain active during the then current subscription period specified in your Subscription Plan, but your Subscription Plan will not thereafter be renewed.

8. Insightech, in its sole discretion, has the right to suspend or terminate your subscription and refuse any and all current or future use of the Services at any time as a result of your breach of this Agreement or for any other reason.

9. Upon any termination or expiration of this Agreement, Insightech will cease providing the Services to You, and You will delete all copies of Insightech Code from all web pages under your control and certify thereto in writing to Insightech within three (3) business days of such termination. In the event of any termination:

   1. You will not be entitled to any refunds of any usage fees or any other fees (except as explicitly otherwise provided in writing), and
   2. any outstanding balance through the date of termination, and other unpaid payment obligations will be immediately due and payable in full and
   3. all of your Reports, Recordings, Customer Data and other data associated with your Account will no longer be available to You.

5. Customer Data

1. You retain full ownership of your Customer Data. You hereby allow Insightech to collect, store and process your Customer Data. Insightech shall use and maintain your Customer Data only as set forth in this Agreement and the Insightech Privacy Policy available at https://www.insightech.com/privacy-policy, as may be updated from time to time.

2. Insightech will not use or disclose your Customer Data to any third parties except:

   1. if required in limited circumstances, including, when complying with legal requirements, preventing fraud or imminent harm, and ensuring the security of our network and services;
   2. if it is part of aggregated, non-personal information, such as average page load time, or the number of pages processed by our system per day; or
   3. to a limited number of Insightech employees or contractors as required to operate, develop or improve the Services.

6. Privacy

1. For information about Insightech’s data protection and collection practices, please read the Insightech Privacy Policy at https://www.insightech.com/privacy-policy, which is incorporated herein by reference. You agree to Insightech’s use of your data in accordance with the Privacy Policy.

2. You represent and warrant that You will not transmit, provide, or otherwise make available to Insightech sensitive personal information about other individuals, including but not limited to other employees, customers, partners, or site visitors. Sensitive personal information includes but is not limited to information regarding a minor, financial information, and medical or health information.

3. You will have and abide by an appropriate Privacy Policy and will comply with all applicable laws, policies, and regulations relating to the collection of information from your site visitors. You must post a Privacy Policy and that Privacy Policy must provide notice of Your use of cookies that are used to collect data. You must disclose the use of Insightech, and how it collects and processes data. This can be done by displaying a prominent link to Insightech Privacy Policy at https://www.insightech.com/privacy-policy.

7. Third Parties

1. If You are an agency or a party representing a third party (“Third Party”), You represent and warrant that You are authorized to act on behalf of, and bind to this Agreement, that Third Party (and upon our request shall provide evidence of such).

2. You further represent and warrant that such Third Party has provided You with explicit permission to collect on its behalf and view its Customer Data and that You shall use such Customer Data strictly in accordance with the permissions provided to You by such Third Party and the terms of this Agreement.

3. You shall ensure that each Third Party agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 5 (Privacy). You acknowledge and agree that:

   1. Insightech makes no representations or warranties for the direct or indirect benefit of any Third Party and
   2. that You will not make any representations or warranties to such Third Party on behalf of Insightech. You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Insightech, the Services, or use thereof. You agree to indemnify, hold harmless and defend Insightech, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Insightech or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Insightech, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to:
      1. any representations and warranties made by You concerning any aspect of the Services to a Third Party;
      2. any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Services;
      3. violations of your obligations of privacy to any Third Party; and
      4. any claims with respect to acts or omissions of a Third Party in connection with the Services.

8. Warranties and Disclaimer of Warranties

1. You represent and warrant that:

   1. You have the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and
   2. neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which You are bound.

2. The Services (including, without limitation, any information, features or functionality contained therein), may include inaccuracies or typographical errors. Insightech and/or its respective suppliers may make improvements and/or changes in the Services at any time, with or without notice. You specifically agree that Insightech shall not be responsible for unauthorized access to or alteration of the Customer Data or data from your Website.

3. Insightech does not guarantee the Services will be operable at all times including, without limitation, during any down time:

   1. caused by outages to any public Internet backbones, networks or servers,
   2. caused by any failures of your equipment, systems or local access services,
   3. for previously scheduled maintenance or
   4. relating to events beyond Insightech’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Insightech or your servers are located or co-located. Complete accuracy in all aspects of your Recordings or Reports at all times also is not guaranteed.

4. THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY INSIGHTECH, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. INSIGHTECH DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS OR VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

9. Limitation of Liability

INSIGHTECH WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF INSIGHTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

IN ANY EVENT INSIGHTECH’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE FOR 1 MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.

10. Waiver / Severability

The failure of Insightech to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, at the option of Insightech the remaining provisions of these Terms will remain in full force and effect.

11. Governance

The use of Services provided by Insightech and the agreement set out in these Terms are governed by the laws of New South Wales, Australia, without giving effect to any principles of conflicts of laws. You agree to the jurisdiction of the courts of New South Wales to determine any dispute arising out of these Terms.