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Terms of Use

These Terms of Use (“Terms”) are between you and Customer Monitor (“our”, “we” or “us”) and govern all use of the Service and the Site.  These Terms shall be read in conjunction with all policies and amendments to these Terms and Customer Monitor’s Privacy Policy. 
By using this Site, you acknowledge that you have read the latest version of the Terms and you agree to be bound by the Terms. 
If you do not agree to be bound by the Terms, please do not use the Site.  We reserve the right to amend the Terms at any time.

1.0  Definitions and Interpretation

“Agreement” means the service agreement between the Subscriber and Customer Monitor; 
“Back End Code” means the Customer Monitor application-specific source code including, but not limited to, the database schema, field definitions, table relationships, survey automation, feedback management, application methodology and interface coding;
“Commencement Date” means the date for the commencement of the provision of Service as specified in the Agreement;
“Confidential Information” means all information exchanged between you and Customer Monitor whether in writing, electronically or verbally, including through the Site in relation to the Customer, Client and/or Respondent but does not include information which is, or becomes, publiclyavailable other than through unauthorised disclosure by a party;
“Client Data” means any data inputted by the Subscriber and the Subscriber’s Respondents in relation to the Subscriber using the Service and the Site;
“Front End Code” means the user interface display and usability platform including, but no limited to, the layout, colour scheme, HTML pages and source code;
“Intellectual Property Rights” includes all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and any other intellectual or industrial property rights of a similar nature, whether registrable or not and whether registered or not;
“Respondent” means a person or entity participating in a Customer Monitor’s market research survey;
“Service” means the customer experience management software solution for businesses, marketers and entrepreneurs made available on the Site;
“Setup and Implementation Fees” means the setup and implementation fees as specified in the Agreement with Customer Monitor;
“Site” means the website at www.customermonitor.com;
“Subscriber” means the registered subscriber to use the Service;
“Subscription Fee” means the monthly subscription fee payable as specified in the Agreement with Customer Monitor;
“You” means the Subscriber, and where the context permits and/or the Respondent.

2.0  Licence to use the Site

2.1  Customer Monitor grant you a personal, non-exclusive and non-transferable limited licence to access and use the Service and the Site subject to these Terms.
2.2  Except for the license granted pursuant to these Terms, you do not acquire any interest in the Site, the Service or any other services or materials provided to you by Customer Monitor.
2.3  As a condition of these Terms, when accessing and using the Service and the Site, you must not:
(a)  attempt to undermine the security or integrity of computing or network systems of Customer Monitor or any third party hosting the Site;
(b use or misuse the Service in any way which may impair the functionality of the Service or the Site, or other systems used to deliver the Service or the Site or impair the ability of any other user to use the Service or the Site;
(c)  attempt to gain unauthorised access to any materials other than those which you have been given express permission to access;
(d)  reproduce (including photocopying or storage in an information storage/retrieval system), modify, distribute, transmit, republish, display, resell, data extract, or data mine the Site in order to commercially exploit or prepare derivative works based on the Site; and
(e)  tamper with, disable, reverse engineer, decompile or otherwise interfere with the proper functioning of the Service or the Site, or any content, proprietary notice, copyright management system or software associated with the Service or the Site including the Front End Code and the Back End Code
2.4  All rights not expressly granted in these Terms are reserved by Customer Monitor.

3.0  Intellectual Property Rights

3.1  Nothing in these Terms constitutes a transfer of any Intellectual Property Rights.  You acknowledge and agree that as between you and Customer Monitor, all Intellectual Property Rights in the Site, the Service, and any other documentation relating to the Services remains the propertyof Customer Monitor.  

4.0  Client Data

4.1  All Intellectual Property Rights in and title to, the Client Data remains your property
4.2  At the termination of this agreement, the Client Data will be made available to you for a period of 30 days in the format “as is” provided to Customer Monitor and all Client Data held by Customer Monitor shall be deleted and/or destroyed.
4.3  Your access and to and return of the Client Data is subject to full payment of the Subscription Fee being made when due.
4.4  You grant Customer Monitor a licence to use, copy, transmit, store and back-up the Client Data for the purposes of enabling you to access and use the Service and for any other purpose related to provision of the Service to you.
4.5  You must maintain copies of all Client Data inputted into the Site.  Customer Monitor adheres to its best practice policies and procedures to prevent data loss, but does not make any warranties that there will be no loss of Client Data.  Customer Monitor expressly excludes liability for any loss of any Client Data under any circumstance.

5.0  Site Availability

5.1  Customer Monitor intends that the Service and the Site to be available 24 hours a day, seven days a week.  However, Customer Monitor does not warrant that the availability of the Service and/or the Site will be uninterrupted and Customer Monitor will not be held liable for any compensation or damages due to such interruptions in availability of the Service and/or the Site.
5.2  Customer Monitor does not warrant that the Service and/or the Site will be error-free and will not be held liable for any compensation or damages due to such error.
5.3  The Site is made available internationally and may contain references to products, programs and services of Customer Monitor or its suppliers that are not available in your location. Such references do not imply that Customer Monitor or its suppliers intend to make available such products, programs or services in your location.

6.0  Changes to the Site and Service

6.1  Customer Monitor may, at any time, without notice:
(a)  modify, suspend or terminate operation of or access to the Site and/or Service, or any portion of the Site and/or Service, for any reason;
(b)  modify or change the Site, or any portion of the Site, and any applicable policies or terms;
(c)  interrupt the operation of the Site and/or Service, or any portion of the Site and/or Service, as necessary to perform routine or non-routine maintenance, error correction, or other changes; and
(d revoke or suspend any login or password

7.0 Fees

7.1  The Setup and Implementation Fees are payable prior to the Commencement Date and within ten (10) days of the date of the invoice.
7.2  The Subscription Fee is payable, monthly in advance.
7.3  The Subscription Fee, Setup and Implementation Fees are non-refundable and Customer Monitor will not provide any refunds for any remaining period for a Subscription Fee.
7.4  You must establish and maintain a valid credit and/or debit card for payment of the Subscription Fee.  You acknowledge and agree that the Subscription Fee shall be charged to the credit and/or debit card and Customer Monitor is authorised for this purpose.
7.5  Any changes to the credit and/or debit card information can be done by emailing accounts@customermonitor.com. 

8.0  Term & Termination

8.1  The term of the Agreement shall begin on the Commencement Date and shall continue for a period of one (1) year unless earlier terminated as provided for in this section.  Your Agreement with Customer Monitor will automatically renew after each one (1) year period unless terminated by either party by providing written notice to the other party.
8.2  Deployment of surveys will temporarily be suspended for a two (2) week period over the Christmas and New Year’s period during Customer Monitor’s close down period.  No surveys will be deployed but the Site will remain available for use.  Customer Monitor will inform the mainclient contact specified in the Agreement of the close down period.
8.3  Either party may terminate this Agreement by written notice to the other party within the first 30 days of the commencement date of each renewed one (1) year term.  Termination after the first 30 days of the commencement date will incur early termination fees.
8.4  Early Termination fees will be calculated by multiplying the remainder of the contract period by the Subscriber’s full monthly plan price.
8.5  If requested in writing, the Subscriber can apply for one (1) hold period of up to three (3) months which will extend the one (1) year term equivalent to the hold period.

9.0  Links to Other Sites

9.1  Customer Monitor is not responsible for the content of any other web site linked to or from the Site. Customer Monitor may provide links from the Site to other sites, but this is done solely as a convenience to you and in no way should be interpreted as a referral or endorsement of any content, sponsor or owner of any other site. All warranties, conditions or other terms express or implied as to any such linked site, including without limitation as to accuracy, ownership, validity or legality of any content of a linked site, are hereby excluded.

10.0  Accounts, Passwords and Security 

10.1  Certain features or services offered on or through the Site may require you to register (including setting up an Customer Monitor login and password). You are entirely responsible for maintaining the confidentiality of your login and password and for any and all activity that occursunder your registration
10.2  You agree to notify Customer Monitor immediately of any unauthorised use of your login and password, or any other breach of security.  Where any breach of security or unauthorised use has occurred, you must take all actions Customer Monitor reasonably deems necessary to maintain or enhance the security of the Service and the Site including notifying the Customer Monitor of such breach of security or unauthorised use.
10.3  You are liable for any losses incurred by Customer Monitor as a result of any breach of security or unauthorised use of your login and password.
10.4  Customer Monitor will not be held liable for any compensation or damages due to any breach of security or unauthorised use.

11.0  Confidentiality and Privacy

11.1  Customer Monitor’s Privacy Policy applies to use of the Service and the Site and forms part of these Terms. 
11.2  By using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmissionis encrypted.
11.3  Each party will keep confidential all Confidential Information of the other party obtained or received in connection with the Service and neither party will, without the prior written consent of the other, disclose or make use of the Confidential Information.

12.0  Disclaimers

12.1  Customer monitor disclaims all warranties, express or implied, including any warranties of accuracy, title, non-infringement, merchantability and fitness for a particular purpose. Customer monitor disclaims any and all liability for the acts, omissions and conduct of any third parties in connection with or related to your use of the Service and the Site and any other Customer Monitor services. You assume total responsibility for your use of the Site and any linked sites.
12.2  The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorised access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
12.3  You warrant and represent that you are acquiring the right to access and use the Service and the Site for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service and the Site.

13.0  Limitation of Liability

13.1  To the full extent permitted by law, Customer Monitor hereby excludes all liability to you (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information including Client Data) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or the Site.
13.2  If you suffer loss or damage as a result of Customer Monitor’s negligence or failure to comply with these Terms, any claim by you against Customer Monitor arising from Customer Monitor’s negligence or failure will be limited in respect of any one incident, or series of connectedincidents, to amount actually paid by you to Customer Monitor in the immediately preceding six (6) month period.
13.3  If you are not satisfied with the Service or the Site, your sole and exclusive remedy is to terminate these Terms in accordance with these provisions.

14.0  Indemnity

14.1  You agree to indemnify and hold Customer Monitor, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including legal fees), made against Customer Monitor by any third party due to, or arising out of, or in connection with, your use of the Service or the Site.

15.0  Violation of the Terms of Use 

15.1  Default is where you:
(a)  breach any of these Terms (including, without limitation, by non-payment of any Subscription Fee) and such breach is not remedied within 14 days after receiving notice of the breach, if the breach is capable of being remedied;
(b)  breach any of these Terms and the breach is not capable of being remedied (which includes any payment of Subscription Fee that are more than 30 days overdue); or
(c)  become insolvent or enter into liquidation or have a receiver or manager appointed of any of your assets, or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction.
15.2  In the event of default, Customer Monitor may take any or all of the following actions, at its sole discretion:
(a)  terminate this Agreement and your use of the Service and the Site;
(b)  suspend for any definite or indefinite period of time, your use of the Service and the Site; or
(c)  suspend or terminate your access to all or any Client Data.
15.3  For the avoidance of any doubt, if payment of any invoice for Subscription Fee due is not made in full by the due date, Customer Monitor may suspend or terminate your use of the Service, the authority and your rights of access to all or any Client Data.
15.4  Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.  On termination of the Agreement you will:
(a)  remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease to use the Services and the Site.
15.5  Customer Monitor reserves its right to use a third-party to enforce payment of any moneys owing by you and the cost of enforcing and collection of the moneys will be payable by you.
15.6  Customer Monitor’s remedies under these Terms and at law shall not merge on termination of the Agreement.

16.0  Governing Law

16.1  You acknowledge and agree that the Agreement and these Terms shall be governed by the laws of New Zealand and agree to submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with the Agreement and these Terms.

17.0  General

17.1  These Terms as amended from time to time, together with terms of any other notices or instructions given to the Subscriber under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entireagreement between you relating to the Services, the Site and the other matters dealt with in these Terms.
17.2  If either party waives any breach of these Terms, this will not constitute a waiver of any other breach.  No waiver will be effective unless made in writing.
17.3  Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.  This clause does not apply to any obligation to pay money.
17.4  You may not assign or transfer any rights to any other person under the Agreement or these Terms without Customer Monitor’s prior written consent.
17.5  If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision.  The remainder of these Terms will be binding on the parties.
17.6  Any notice given under these Terms by either party to the other must be in writing by email.  Notices to Customer Service must be sent to accounts@customermonitor.com or to any other email address notified to you by Customer Monitor.  Notices to you will be sent to the email address which you provided when setting up your access to the Service.
17.7  A person who is not a party to the Agreement and these Terms has no right to benefit under or to enforce any term of these Terms.
17. Customer reserves the right to use Customer Monitor's name and credentials in an appropriate and acceptable manner for standard marketing promotions. Equally, Customer Monitor reserves the right to use Subscriber’s name and credentials in an appropriate and acceptablemanner for standard marketing promotions.  Acceptable and standard marketing promotions include, but are not limited to Customer Monitor’s client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion