- Platform Purpose. The purpose of the Culture Counts platform is to make software, services, and related documentation, materials, and information available to subscribers.
- Voluntary Use; Binding Authority. You acknowledge that subscription to the platform is voluntary and does not create a partnership, agency, or other relationship between you and Culture Counts. Unless otherwise agreed or permitted by Culture Counts in writing, you cannot share or transfer any software or other materials you receive from Culture Counts in connection with being a subscriber. Notwithstanding the restrictions in this Agreement, you are responsible for any use of the platform accessed or enabled through your user ID and password.
- License. Subject to your compliance with the terms and conditions of this Agreement, Culture Counts hereby grants you personal, limited, non-exclusive, non-transferable, non-assignable use of the platform solely for evaluation purposes, and only in connection with this subscription. This license does not grant you the right to copy, reproduce, distribute, modify or create derivative works of the platform. Content generated from use of the platform including your organisation trade marks, related data and reporting outputs (including those of third parties related to your organisation) will immediately vest in you upon creation and upon full payment of the fees.
- Certain Restrictions. You shall not, directly or indirectly through others: (a) license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the platform or any audio or visual elements, documents, works, products or services contained in the platform or made available to you under this Agreement in the course of using the platform (the “Content”) in any way; (b) translate, reverse engineer, decompile, disassemble, attempt to derive or access the source code of the platform; (c) modify or make derivative works based upon the platform or the Content; (d) create Internet “links” to the platform or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (e) make any copies of any Content provided or which you are granted access to in connection with the platform. Culture Counts retains ownership of all software, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Culture Counts intellectual property.
- Payment Terms. You agree to pay to Culture Counts the subscription and service fees specified in the Proposal. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
- Changes to the Scope. Changes to the scope of work, either at the commencement or part way through the project may result in additional fees being charged to you. Such fees will be outlined in an updated proposal together with a revised timeline and must be agreed and signed off by mutual consent prior to commencement.
- Provision of Information. You acknowledge and agree that in order for the project to proceed smoothly and on schedule, you are responsible for providing all necessary information and feedback within the designated timeframes as agreed at the commencement of the project. Failure to provide the required information in a timely manner may result in project delays and additional costs. Culture Counts will not be held liable for any such delays or costs arising from your failure to provide the necessary information in a timely manner.
- Ownership; Proprietary Rights. Culture Counts retains all right, title and interest in and to the platform and all other information provided to you in connection with the platform, including any related intellectual property rights. The Culture Counts name and logo are trademarks of Culture Counts, and no right or license is granted to use such names or logos. You acknowledge that, except as specifically provided under this Agreement, no right, title or interest in any property, intellectual property or other materials or information is granted to you.
- Feedback; User Groups; Collection of Software and Systems Information.
a. Culture Counts may provide you with the ability to participate in user forums about the platform and evaluation practice through user groups established at websites provided to you directly by Culture Counts (“User Groups”). To protect the confidential information of User Group participants, all information shared by User Groups shall be securely stored and kept confidential by Culture Counts. User group participants shall not disclose, publish, blog, transmit, or otherwise disseminate any Feedback or other information shared in these User Groups.
b. In addition to Feedback and in order to test and improve the platform, you acknowledge that Culture Counts and its affiliates will be collecting, using, storing, processing and analysing (collectively, “Collecting”) diagnostic, technical, usage, and/or related information from the platform, software that interfaces with the platform, and the hardware, systems and equipment that are used to run the software (“Systems Information”). The information collected includes, but is not limited to defect information, bug reports, usage information, diagnostic information, information about your hardware and browser environments. This data is collected for issue diagnostic purposes and deleted within a limited time period. By accessing or using the platform, you acknowledge and agree that Culture Counts and its affiliates have your permission to collect all such information and use it as set forth above.
c. In addition to analysing user Feedback and product improvement data, you acknowledge that Culture Counts will be analysing survey response data from all subscribers in aggregate form to generate insights and understanding about the sector. These insights will be used by Culture Counts to make ongoing improvements to the measurement framework. Learnings may also be made available to subscribers in periodic reporting updates, in non-identified form only. The aggregate data will not identify individuals, organisations or events unless given explicit permission, and all Privacy principles will be strictly adhered to. By accessing or using platform, you acknowledge and agree that Culture Counts has your permission to use collected survey responses data as set forth above.
d. In order to facilitate benchmarking and possible sector or artform collaboration, Culture Counts may provide the organisation name and type of subscribers to other clients or prospective clients. No client data or personal details (aside from organisation name and information publicly available) will be shared with other organisations, strictly in line with our privacy principles.
- Confidential Information; Privacy.
a. You agree that any private communications between you and Culture Counts concerning the platform and your subscription will be considered and referred to in this Agreement as “Confidential Information.” Confidential Information shall not include information: (i) that is generally available to the public other than through breach of this Agreement; (ii) that is rightfully disclosed to you by a third party without any associated obligation of confidentiality; or (iii) that can be proven was independently developed by you without use of any Confidential Information.
b. To the extent that you are required to disclose any Confidential Information pursuant to applicable law, regulation or legal process, you will: (i) promptly notify Culture Counts of such potential disclosure prior to disclosure thereof in order to give Culture Counts an opportunity to seek a protective order or other appropriate remedy; (ii) disclose only the minimum amount of Confidential Information legally required; (iii) use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed; and (iv) upon any compelled disclosure, continue to maintain the confidentiality of such Confidential Information in accordance with the terms of this Agreement.
- Third Party Materials, Interactions and Links.
a. Portions of the platform may include third party software and other copyrighted material. Acknowledgements, licensing terms, and disclaimers for such material are contained or referenced in the platform. Your use of such material is governed by such respective terms. The right to use the platform pursuant to this Agreement does not provide any license or agreement that may be required by third parties prior to your use of or access to the platform.
b. During use of the platform, Culture Counts may provide links to third party sites to you. Any such activity, and any terms, conditions, warranties or representations associated with such links are solely between you and the applicable third-party. Culture Counts and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party.
- Warnings, Disclaimers and Limitations.
a. The platform may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Culture Counts is not responsible for any delays, failures, losses or other damage resulting from such problems.
b. The platform is provided to you as-is and you assume all risks and all costs associated with access of use of the platform. This includes without limitation all back-up and recovery expenses, costs incurred for the use of the platform on any networks, systems and peripherals and any damage to any equipment, software information or data. Culture Counts make no and hereby disclaims any and all warranties, representations or guarantees, express or implied concerning the platform, including but not limited to any fitness for purpose, merchantability, completeness, non-infringement or that the platform will be uninterrupted or error-free.
c. Except to the extent permitted by law, in no event will Culture Counts be liable for any indirect, special incidental or consequential damages.
This agreement is for the initial term as specified in the Proposal (collectively, Term). You may terminate this agreement by providing 30 days written notice to the other party. In the event of termination by the Client during the Term, no refunds will be provided. Any outstanding balances will be due and payable unless otherwise agreed by Culture Counts.
a. Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) if to you, the date sent to the email address provided by you in establishing your account, or (ii) if to Culture Counts, the date sent to Culture Counts to the following email address email@example.com
b. Modifications. This Agreement may be modified by you only upon a writing signed by both parties. This Agreement may be modified by Culture Counts in accordance with the terms hereof.
c. Governing Law; Venue; Rules for Certain Government Agencies and Accredited Institutions. This Agreement will be governed by and construed in accordance with the laws of the State of Western Australia, without regard for conflicts of laws. The parties further submit to and waive any objections to personal jurisdiction of and venue in Western Australia.
d. Severability. If any provision or clause in this Agreement shall be found or held to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable laws so as to be valid and enforceable, or, if it cannot be so amended without materially altering the intention of the parties, such provision shall be stricken, and the remainder of this Agreement shall remain in full force and effect.
e. Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought.
f. Assignment. The provisions of this Agreement shall be binding on and inure to the benefit of each party’s successors and assigns. Culture Counts may assign this Agreement with notice to you. You may not assign this Agreement without the prior written consent of Culture Counts.
g. Entire Agreement. This Agreement and the terms in the subscription consists of the entire understanding and agreement of the parties and supersedes any and all prior agreements of the parties with respect to the subject matter hereof.
h. Headings. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.