Capitalised terms have the following meanings in these Terms:
1.1. “Account” means the account details you have registered with us via Our Website, which are used to enable you to access and use ConversionCow in accordance with these Terms;
1.2. “Content” means all information of whatever kind (including blogs, articles, comments, videos, audio, images, advertisements, links etc.) published, posted, stored or sent in connection with ConversionCow;
1.3. “Payment Method” means any one or more methods of payments we make available to you, and you select from time to time in accordance with these Terms, as the way you will pay for your subscription based use of ConversionCow; and
1.4. “User” means a person who uses ConversionCow (whether or not registered with us).
2. Changes to these Terms
We reserve the right to change these Terms at any time. The current version of the Terms will always be posted on Our Website, and will cancel and replace any previous version(s). By continuing to use ConversionCow after the posting of such changes, you agree to be bound by the changes.
3. Delivery and Responsibility
3.1. Subject to your on-going payment of the Subscription Fees (as defined below) for ConversionCow, we will:
3.1.1. provide ConversionCow to you for your download and installation on any website(s) paid for and included as part of your subscription as designated on your Account (“Target Website”); and
3.1.2. grant you a non-transferable, non-exclusive right to access and use ConversionCow, and to allow such access and use by users of the Target Website, for your business purposes.
3.2. You must register for an Account to access and use ConversionCow and to perform certain activities in the use of ConversionCow. When you register for an Account, you will be required to provide details for one or more Payment Methods. You must ensure that you provide accurate, current and complete information as requested or directed by ConversionCow when registering for Account (including with respect to Payment Methods), and to promptly update this information to maintain its accuracy. We may suspend or terminate your registration, and refuse any and all current or future use of ConversionCow, if we suspect that such information is inaccurate or incomplete.
3.3. You must not authorise or permit any other person to use your Account. You must protect and keep confidential your password and other account or identity information for your Account. You must notify us immediately of any apparent breach of security such as loss, theft, misuse or unauthorised disclosure or use of your Account. You are responsible for third parties who use your Account or identity (unless and to the extent that we are at fault).
4. Your use of ConversionCow
4.1. You must comply with:
4.1.1. these Terms in your download, installation, access and use of ConversionCow; and
4.1.2. any guidelines or requirements on Our Website and must promptly comply with any reasonable request or instruction by us in connection with ConversionCow.
4.2. You must not (and must not authorise any person to):
4.2.1.make ConversionCow or any of Our Content (as defined below) available to any third party not authorised by us to access and use it;
4.2.2. install and operate ConversionCow on any other website other than Target Website;
4.2.3. send or store code Content (including malicious code and malware) that could result in damage to ConversionCow;
4.2.4. integrate or link ConversionCow with other software (except as permitted by the guidelines or requirements on Our Website, or with our prior written consent);
4.2.5. use ConversionCow for any illegal or offensive purpose, or to retrieve, store, manipulate, process, transmit, display or forward any Content that is illegal, defamatory or offensive;
4.2.6. wilfully interfere with or disrupt the integrity of ConversionCow;
4.2.7. access or use ConversionCow or any of Our Content to build or develop (or assist any third person to build or develop) a competing product or service to ConversionCow; nor
4.2.8. attempt to gain unauthorised access to any underlying software or infrastructure used to provide ConversionCow or any of our related system or networks.
4.3. You acknowledge that:
4.3.1. Our Content is subject to change at any time without notice and may contain errors; and
4.3.2. we may at any time modify, or temporarily suspend access, to ConversionCow and/or any Our Content, with or without notice, for any reason (including scheduled maintenance, security reasons or if we believe that you have breached these Terms). We will not be liable to you or any third party for any such modification or suspension.
5. User Content
5.1. ConversionCow allows Users to post Content and communicate with others. By submitting any Content on, to, or through ConversionCow, you understand and agree that:
5.1.1. You are responsible for your Content. You must ensure that your Content: (i) is accurate and up to date; (ii) is not misleading; (iii) complies with all applicable laws and regulations; (iv) does not infringe any third party intellectual property or other rights; (iv) is not defamatory, offensive, vulgar, racist, obscene, abusive, threatening, harassing, invasive of another’s privacy or similarly inappropriate.
5.1.2. You may be exposed to risks personally if you breach this clause 5.1 – for example, you may be held liable to a third party to whom your Content relates – so you will ensure that all statements you make in your Content are limited to fair comment (based on truth or reasonable opinion), and not offensive or illegal.
5.1.3. We are not responsible if your Content is misused by other Users.
5.2. You must have (and will retain) all rights and permissions needed to enable us and other Users to use your Content as contemplated by ConversionCow and/or these Terms.
5.3. We are not responsible for any Content posted by Users and have no obligation to monitor Content. Nevertheless, we may monitor or review any Content as we choose and we reserve the right without notice to temporarily suspend your access to ConversionCow if we reasonably believe that your Content breaches these Terms, and that such steps are necessary to protect us or others or that a criminal act has been committed. If so, you must not attempt to re-publish or re-send the relevant Content.
5.4. ConversionCow may be supported by advertising revenue and may display advertisements, a public directory and promotions (“Advertisements”). We have no liability in respect of those Advertisements.
5.5. Your use and/or reliance on Content and Advertisements is at your own risk. We do not in any manner endorse or vouch for the accuracy or reliability of, Advertisements, or the Content of Users. We also do not endorse the organisations behind Advertisements or the products, services or information provided by them.
5.6. If you publish any Content, you grant us a worldwide, irrevocable, perpetual, royalty-free, non-exclusive, and fully sub-licenseable licence to display, distribute, reproduce, transmit, publish, perform, translate, edit, adapt, remove, modify, create derivative works from, and otherwise use such Content for the purposes of operating ConversionCow and exercising our rights under these Terms. You also grant each User a licence to use your Content to the extent permitted by the functionality of ConversionCow and/or these Terms.
5.7. You agree that any questions, comments, suggestions, ideas, feedback or other information about ConversionCow (“Submissions“) which you provide us are non-confidential and will become our sole property. We will own all intellectual property rights in, and will be entitled to the unrestricted use and dissemination of, these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
5.8. You agree that we may analyse and use information about you and your Users’ use of ConversionCow and performance of the ConversionCow that is anonymised and aggregated by us (“Service Data“) to provide features, improve ConversionCow and/or Our Website and to develop new features, products and services. Service Data is not your Content or your confidential information.
6. Our intellectual property
6.1. We (or our relevant licensors, as the case may be) retain all rights, title, intellectual property rights and other proprietary interests in or relating to:
6.1.1. Our Website, ConversionCow and the Service Data; and
6.1.2. any Content which we ourselves make available on ConversionCow and Our Website (Our Content),
including all derivatives and improvements thereto (Our IP). You are only authorised to use Our IP as part of the licence grant at clause 3.1, and for no other purpose.
6.2. While we make every effort to ensure that Our Content is accurate and up to date, we cannot guarantee this and do not accept legal responsibility (including for the accuracy, completeness, timeliness, availability or reliability) for Our Content. Before acting on it, you must make your own appropriate and careful enquiries including as to its accuracy and suitability for your purposes. You rely on Our Content at your own risk.
8. ConversionCow Trial
If, when registering for an Account, you have selected to trial ConversionCow (“Trial”), then you may use ConversionCow for a limited period of time for internal demonstration, testing, or evaluation purposes only. We provide the Trial “as is” and “as available” and without warranty. Under no circumstances will we be responsible for any loss or damage resulting from your use of ConversionCow, the content made available through it (including Our Content), or from the conduct of any Users of ConversionCow, in the course of the Trial. Any of your Content uploaded in a Trial will be permanently lost unless you purchase a subscription to ConversionCow or export such data before the end of the Trial.
9. Subscription Fees
9.1. You agree to pay us the fees for your subscription based use of ConversionCow as specified on Our Website (Subscription Fees). The Subscription Fees will be calculated and billed monthly, and will be automatically debited from your Payment Method. All Subscription Fees paid under these Terms are non-refundable. We reserve the right to increase Subscription Fees no more than once annually by an amount equal to the most recent Consumer Price Index (CPI) annual increase or such other amount we believe to be reasonable. ConversionCow will endeavour to inform customers of any price changes ahead of time, including by posting the price change on Our Website.
9.2. You are responsible for paying all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by these Terms, excluding only taxes based on our net income.
9.3. Where your Payment Method is by credit card, then you acknowledge and agree that:
9.3.1. we use a third-party credit card processing service to process payments (Payment Processing Provider). You consent to the use of such service and to the transfer of your credit card details to the Payment Processing Provider. You agree to be bound by any separate terms applicable to the processing service;
9.3.2. we do not have access to (other than for the expiry date of your credit card for the purpose of the management of your Account), or store, any of your credit card information provided to us when you opened your Account, but you acknowledge and consent to that information being held, in an encrypted tokenised form by the Payment Processing Provider;
9.3.3. the Payment Processing Provider may, from time to time, contact you directly by using the information you provided to us when you opened your Account, to randomly audit transactions and confirm the details of transactions; and
9.3.4. when you provide credit card details as your Payment Method, you agree to provide the details for a valid credit card that will be associated with your Account at all times. You warrant and represent that the credit card information that you provide will at all times be correct, valid and current and you are authorised to provide such information to us, or to the Payment Processing Provider.
9.4. We may take steps to rectify any payment processing errors of the Subscription Fees that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payment Method used for the original payment by you, so that you end up receiving or paying the correct amount.
10. Our liability to you
You acknowledge and agree that:
10.1. Under no circumstances (whether in contract (including under an indemnity), tort (including negligence), under statute or otherwise) (a) will our aggregate liability to you exceed the Subscription Fees you have paid to us in the twelve (12) month period immediately prior to the date on which the event which gave rise to the action under these Terms first occurred; or (b) do we accept liability for any indirect, special, consequential, incidental, or punitive damages of any nature, including loss of profit or revenue, loss of anticipated savings and or any loss of data, regardless of whether a party knew of the potential for such damages. ConversionCow is made available “as is” and “as available”. We do not warrant that it, or content made available through it (including Our Content), will be uninterrupted or error-free and we expressly disclaim all warranties of fitness for a particular purpose, accuracy, completeness or non-infringement. We cannot guarantee and we do not promise any specific results from the use of ConversionCow. However, nothing in these terms will be construed as limiting or excluding our liability where not permitted by law.
10.2. Although we take reasonable steps to prevent the introduction of viruses, worms, “trojan horses,” or other destructive materials to ConversionCow, we do not guarantee or warrant that it or materials that may be downloaded through it do not contain such destructive features. We are not liable for any damages or harm attributable to such features.
10.3. You indemnify us against all claims and liabilities directly or indirectly related to your use of ConversionCow and/or your breach of these Terms.
11.1. We may terminate these Terms and your rights to use ConversionCow immediately if:
11.1.1. You or your Users misuse Our Website or ConversionCow in any way;
11.1.2. You or any other person misuses your Account, including any fraudulent activity relating to your Account;
11.1.3. If we believe that you have violated or acted inconsistently with the letter or spirit of these Terms;
11.1.4. You or the entity you have agreed to these Terms on behalf of, become bankrupt or insolvent or are otherwise unable to meet your financial obligations; or
11.1.5. our rights to operate and use any of the technology granted by any third party in the provision to you of ConversionCow is terminated or suspended for any reason whatsoever.
11.2. You may terminate these Terms and close your Account at any time via Our Website.
11.3. Your right to download, install, access and use ConversionCow will immediately cease on termination of these Terms. We may remove or delete the Content within a reasonable period of time after the termination of your access to ConversionCow.
11.4. Termination of these Terms for any reason does not affect any other rights and remedies available to either you or us which arose at or before the Terms were terminated. The provisions of these Terms that by their nature extend beyond the termination of these Terms will survive termination.
12.1. We may use your name and logo on our customer lists, promotional material and website(s) (and you grant to us the perpetual right to use your logo for this purpose).
12.2. These Terms constitute the entire agreement between us and you with respect to their subject matter and supersede any previous communications, representations or agreements between us and you. You acknowledge and agree that you have not relied on any pre-contractual statements made by us.
12.3. Any failure by either party to exercise or enforce any right or provision of these Terms does not mean this is a “waiver” (ie that it cannot be enforced later). If any part of these Terms is ineffective or unenforceable for any reason, then it will be replaced with a provision which as far as possible achieves the same thing and the rest of these Terms shall continue to apply.
12.4. Neither you nor us are liable for any failure to perform or delay in performing any obligation (excluding payment) under these Terms if the failure or delay is caused by any circumstances beyond your or our reasonable control including any third party telecommunication failures.
12.5. We may transfer all or part of our rights or duties under these Terms provided we take reasonable steps to ensure that your rights under these Terms are not prejudiced. As these Terms are personal to you, you may not transfer any of your rights or duties under it without our prior written consent.
12.6. These Terms shall be exclusively governed by the laws of the State of Victoria, Australia and any disputes will be decided only by the courts of that State.