Terms of Use and Privacy

Quote Stock Sell Terms and Conditions of use and Privacy Information

The Quote Stock Sell Group of Companies being the entities specified in these terms and conditions, together referred to as the Provider.

Background

  • The Provider owns and operates Quote Stock Sell (QSS), an online service that allows customers to manage business processes more efficiently.
  • QSS is a Software as a Service application hosted on the cloud computing platform specified in these terms and conditions.
  • The Provider wishes to sell to the Customer a subscription to QSS.
  • The Customer wishes to use the QSS services specified in their agreement.

1.0 Interpretation

  • 1.1 Singular numbers include the plural and vice versa. Any reference to a person includes a reference to a firm or corporation.
  • 1.2 A reference to legislation or to a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision. It also includes any amendments, modifications or re-enactments of that legislation or legislative provision and any legislation or legislative provision substituted for, and any statutory instrument issued under that legislation or legislative provision.
  • 1.3 The clause headings in and indexed to this agreement are for reference purposes only.
  • 1.4 A reference to any deed, licence, document or other instrument (including this agreement) includes a reference to that deed agreement licence document or other instrument as renewed, extended, novated, varied or substituted from time to time.
  • 1.5 A reference to any party to this agreement, deed, licence, document or other instrument required under this agreement or for the purposes of this agreement includes that party’s executors, administrators, substitutes, successors and permitted assigns.
  • 1.6 A reference to the words “writing” or “written” shall be taken to mean a communication sent by post, facsimile, e-mail or via the QSS System.
  • 1.7 References to clauses are references to clauses of this agreement.
  • Where a trade mark is published on the QSS System, the Provider publishes the trade mark for the sole purpose of assisting users of the QSS System to use third party devices, software and applications connected with the trade mark. The Provider does not intend to infringe intellectual property rights of the owners of trade marks published on the QSS System.

2.0 Definitions

Cloud Computing Platform

The server or data centre on which the QSS Service is hosted, on which the Customer’s data is stored and from which the Customer’s data is accessed as specified in the user agreement.

Includes servers and data centres the QSS Service and the Customer’s data are transferred to.

Cloud Proprietor

The owners, administrators and agents of the Cloud Computing Platform as specified in the user agreement.

Registration Information

The Customer’s password and identification given to the Provider and used by the Provider to establish an User Account and by the Customer to access its User Account

Software

The software that is under the Provider’s control. Not the Customer’s software.

Software as a Service

Software hosted on a cloud computing program that provides a service to visitors over the Internet.

QSS System

The software, business processes and intellectual property that form the businesses collectively known as “Quote Stock Sell”.

User Accounts

Unique parts of the QSS System accessible only to customers who have subscribed to the QSS Service and who hold Registration Information.

User Accounts may vary in the level of functionality and access to the QSS System afforded to the Customer.

References to User Accounts include the Primary User Account and additional User Accounts created by the Customer.

QSS Database Area

The country or geographic region which is served by the QSS database the User is logged into at the time of registration and which is defined by the base currency in use in that database.

Registration Address

The address entered by the User upon registration.

3.0 Commencement

  • The Provider will begin supplying services to the Customer at the Commencement Date specified in their contract schedule.

4.0 User Accounts

  • 4.1 To use the QSS System, the Customer must set up a User Account (the Primary User Account) with the Provider by supplying the Provider with Registration Information.
  • 4.2 The Customer is entitled to set up additional User Accounts and the Customer agrees to be responsible for these additional User Accounts in the same way as the Customer is responsible for the Primary User Account. The Customer acknowledges that additional User Accounts will incur fees and charges pursuant to clause 8.0.
  • 4.3 If the Customer permits a third party to access any of the Customer’s User Accounts, the Customer must provide to the third party a copy of this agreement before providing the third party with information to enable access to the QSS System.
  • 4.4 Any act or omission by a third party to whom the Customer has granted access to a User Account that causes the Customer to breach any term or condition of this agreement isthe sole responsibility of the Customer.
  • 4.5 The Customer warrants that all Registration Information given to the Provider, including credit card details and other information to facilitate payment for services, is accurate at the Commencement Date and that it will be kept up-to-date by the Customer at all times. The Customer acknowledges that failure to comply with this condition may result in a denial of access to User Accounts held by the Customer and termination of this agreement without further notice.
  • 4.6 The Customer assumes sole responsibility for maintaining the confidentiality and security of all Registration Information.
  • 4.7 The Customer is solely responsible for all usage of its User Accounts including, but not limited to, use of aUser Account by any person who uses the Registration Information with or without authorisation or any person who has access to any computer from which aUser Account is accessible.
  • 4.8 The Customer may use the QSS System to create additional User Accounts in its name however the Provider may charge a fee for this pursuant to clause 8.0 or the Provider may prevent the Customer from creating additional User Accounts for any reason whatsoever.
  • 4.9 If a User Account becomes no longer secure the Customer must promptly advise the Provider and the affected Registration Information must be updated by the Customer.
  • 4.10 The User Accounts accessible by the Customer at the Commencement Date are set out in their Schedule.

5.0 Data Access

  • 5.1 The Customer must only access its data and the QSS System via the User Account/s the Customer has properly subscribed to pursuant to this agreement.
  • 5.2 If the Customer requests its data to be provided in a format not supported by the QSS System the Provider may either decline this request or charge the Customer a fee to do so.
  • 5.3 The Customer acknowledges that the QSS System may experience scheduled and unscheduled outages and the Customer agrees to hold the Provider harmless and indemnify the Provider against any loss incurred by the Customer due to outages.
  • 5.4 If the volume of data downloaded or stored by the Customer is deemed by the Provider to be excessive, the Provider may charge the Customer an excess usage fee payable by the Customer at the end of the next period of the Billing Cycle specified in clause 8.4.
  • 5.5 The Customer must not decompile or reverse engineer or attempt to decompile or reverse engineer the QSS System.
  • 5.6 The Customer must not upload to the QSS System data that is incompatible with the QSS System or that may cause disruption to the QSS System
  • 5.7 The Customer must only upload to the QSS System intellectual property that the Customer is legally authorised to communicate or publish by the owner of that intellectual property.

6.0 Data Security

  • 6.1 The Customer acknowledges that QSS is hosted on the Cloud Computing Platform, not on servers owned or controlled by the Provider.
  • 6.2 The Customer accepts that the Provider cannot guarantee the security of the Cloud Computing Platform as it is controlled by the Cloud Proprietor and not by the Provider.
  • 6.3 If the Customer suffers loss on account of a breach of data security that can be attributed to an act or negligence of the Cloud Proprietor, the Customer agrees to hold the Provider harmless for this loss.
  • 6.4 The Provider cannot and does not guarantee the security of the Customer’s computer or the data contained therein.
  • 6.5 To remove doubt, the Customer indemnifies and holds harmless the Provider against all loss or damage incurred as a result of hacking, viruses, Trojans, other malware or any other security breach affecting the Customer’s computers or the data contained therein that are proven to have emanated from the Provider.
  • 6.6 The Customer is solely responsible for maintaining a backup of its data.
  • 6.7 The Customer indemnifies the Provider against any losses incurred by the Customer due to data being corrupted, lost or destroyed for any reason whatsoever.

7.0 Privacy of Information

  • 7.1 The Customer acknowledges that although the Provider takes reasonable steps to protect the privacy of the Customer and the Customer’s data, the Provider cannot and does not guarantee the privacy of the Customer or the Customer’s data.
  • 7.2 The Provider may only communicate with a third party about the Customer’s User Accounts or the Customer’s data if the Customer has first given the Provider written authorisation to do so.
  • 7.3 A request by the Customer for the Provider to share the Customer’s data with a third party is also an authorisation by the Customer for the Provider to do this.
  • 7.4 The Customer consents to the Provider allowing the Customer’s liquidators, administrators and successors to access the Customer’s data and the Customer’s User Accounts.
  • 7.5 The Customer agrees to its credit card information being handled by a third party selected by the Provider.
  • 7.6 The Customer acknowledges that for fraud prevention reasons, elements of its credit card information are communicated to and stored by the Provider, namely:

    7.6.1 The name of the credit card holder;7.6.2 The expiry date of the credit card;7.6.3 The final four digits of the credit card.

8.0 Fees & Charges

  • 8.1 The Customer must pay to the Provider the fees and charges specified in their contract and pursuant to this agreement.
  • 8.2 The Customer must pay to the Provider fees and charges in order to access the QSS Services Provided specified in their agreement.
  • 8.3 Services supplied by the Provider that are not specified in the user agreement shall be treated as if they are included in the user agreement (for example new services introduced by the Provider in the future).
  • 8.4 If the Customer wishes to access QSS services not specified in the user agreement the Provider may levy additional fees and charges to the Customer.
  • 8.5 The Customer must pay the Provider in accordance with the BillingCycle specified in the user agreement.
  • 8.6 The Provider may change the Billing Cycle at any time, with these changes to take effect on the first day after the end of the current Billing Cycle.The Provider must first give the Customer notice of any change to the Billing Cycle in order for this to take effect.
  • 8.7 The Provider may change fees and charges at any time with these changes to take effect on the first day after the end of the current Billing Cycle. The Provider must first give the Customer notice of any change to fees and charges in order for this to take effect.
  • 8.8 The Customer is required to pay all fees and charges by the Payment Method specified in the user agreement.
  • 8.9 The Provider may change the Payment Method, with these changes to take effect on the first day after the end of the current Billing Cycle. The Provider must first give the Customer notice of any change to the Payment Method in order for this to take effect.
  • 8.10 If the Customer fails to make a payment for any reason the Customer remains liable personally for all fees and charges incurred as a simple debt and the Provider reserves the right to either suspend or terminate the User Accounts and to terminate this agreement.

9.0 Third Party Integration

  • 9.1 The Provider gives no warranty or assurances to the Customer with respect to the security, accuracy or validity of data moved from the QSS System to any third party system.
  • 9.2 The Customer acknowledges that the Provider cannot and does not give any warranty regarding compatibility between the QSS System and any third party system.

10.0 Data Hosting

  • 10.1 At the Commencement Date the Customer’s data is hosted on theCloud Computing Platform specified in the user agreement.
  • 10.2 The Provider may in its absolute discretion move any or all of the Customer’s data to a new cloud computing platform without giving notice to the Customer and without first obtaining the Customer’s consent.
  • 10.3 The Customer indemnifies and holds harmless the Provider against any loss caused to the Customer or any third party due to data lost or corrupted during transfer from one cloud computing platform to another.
  • 10.3 The Customer indemnifies and holds harmless the Provider against any loss caused to the Customer or any third party due to data lost or corrupted during transfer from one cloud computing platform to another.

11.0 Marketing Materials

  • 11.1 The Customer consents to receiving marketing materials from the Provider by e-mail.
  • 11.2 To cease receiving marketing materials by e-mail from the Provider, the Customer is required to contact the Provider directly with a request to unsubscribe.

12.0 Intellectual Property

  • 12.1 The Customer assigns to the Provider all intellectual property that he or she may be deemed to own that derives from the Customer’s participation in andusage of the QSS System.

13.0 Indemnity

  • 13.1 The Customer completely and irrevocably indemnifies the Provider and its agents and assigns against any and all loss the Customer may incur pursuant to this agreement, even if the Provider has first been advised by the Customer of a possibility of such loss being incurred by the Customer.
  • 13.2 The Customer completely and irrevocably indemnifies the Provider and its agents and assigns against any and all loss the Customer may incur as a result of any changes to the law.
  • 13.3 The Customer acknowledges that the laws of the jurisdiction/s in which the Cloud Computing Platform, the Provider or the Customer are located may affect the Customer’s data and the Customer’s rights and the Customer indemnifies and holds harmless the Provider for any loss so incurred by the Customer.
  • 13.4 The Customer acknowledges that the Provider does not offer financial, accounting or legal advice and agrees to hold harmless the Provider against any loss allegedly incurred by the Customer as a result of the Customer’s reliance on information supplied by the Provider.

14.0 Notices

  • 14.1 The parties may provide each other with notices by e-mail.
  • 14.2 Notices are deemed to be received one day after the date the notice was sent.

15.0 Implied terms

  • 15.1 Any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
  • 15.2 Where legislation implies in this agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in this agreement. However, the liability of the Provider for any breach of such condition or warranty will be limited, at the option of the Provider, to one or more of the following:

    15.2.1 if the breach relates to goods:

    15.2.1.1.1 the replacement of the goods or the supply of equivalent goods;

    15.2.1.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods; or

    15.2.1.1.4 the payment of the cost of having the goods repaired; and

  • 15.2.2 if the breach relates to services:

    15.2.2.1.1 the supplying of the services again if the services are still available; or

    15.2.2.1.2 the payment of the cost of having the services supplied again if the services are still available.

16.0 Entire Agreement

  • This agreement excludes and completely supersedes any other agreement entered into between the Provider and the Customer except where another agreement is dated after the date of this agreement and is signed by both the Provider and the Customer.

17.0 Jurisdiction

  • The courts of the jurisdiction specified in the agreement have non-exclusive jurisdiction to adjudicate any legal dispute arising out of this agreement.

18.0 Termination

  • 18.1 The Provider may immediately terminate this agreement if any of the following occurs:

    18.1.1 The Customer sends written notice to the Provider of an intention to deactivate the Customer’s User Accounts and/or terminate this agreement.18.1.2 The Provider sends written notice to the Customer of an intention to terminate this agreement;18.1.3 Any breach of this agreement by the Customer of which the Provider has given written notice to the Customer;18.1.4 The Customer becomes insolvent or has administrators or liquidators appointed;18.1.5 The fixed term for which the Customer has subscribed comes to an end;18.1.6 The Customer fails to make a payment to the Provider pursuant to Clause 8.0;

  • 18.2 If this agreement is terminated before the end of a Billing Cycle for which the Customer has paid in advance, the Customer forfeits access to the QSS Service for the remainder of the term and acknowledges that itis not entitled to a refund of money paid.
  • 18.3 If this agreement is terminated before the end of a Billing Cycle for which the Customer has agreed to pay in arrears, the Customer forfeits access to the QSS Service for the remainder of the term and remains liable for fees and charges incurred pursuant to Clauses 5.2 and 8.0. To remove doubt, the Customer will be liable to pay all fees and charges for the entire current Billing Cycle, despite having terminated this agreement before the end of the Billing Cycle.
  • 18.4 The rights of the parties under this agreement do not merge at the agreement’s termination.

19.0 Amendments

  • This agreement may be amended only in writing signed and dated by duly authorised persons for both parties.

20.0 Severability

  • 20.1 If any provision of this agreement is held by a court of law to be invalid or unenforceable in any way, the remaining provisions must not in any way be affected or impaired.
  • 20.2 This agreement must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.

21.0 Assigning rights

  • 21.1 The Customer may assign its rights under this agreement only if all of the following conditions are met:

    21.1.1 the Provider has given prior written consent;21.1.2 the assignee has given the Provider satisfactory proof of identification;21.1.3 the assignee meets eligibility criteria set down by the Provider;21.1.4 the assignee has a credit rating acceptable to the Provider.

  • 21.2 The Provider may assign its rights under this agreement.

22.0 REFUND POLICY

  • The Provider shall, in its absolute discretion, provide a partial or full refund to the Customer if the Customer is not satisfied with the services of the Provider. Requests for refunds will be assessed by the Provider on a case by case basis. Subject to any legislative requirements, the Provider reserves its right to refuse any request for a refund made by the Customer.

23.0 Waiving rights

  • If the Customer breaches this agreement and the Provider does not exercise a right that it has because of the Customer’s breach, the Provider does not waive its entitlement to exercise that right at any later time.

SCHEDULE

1 Fees and charges

As per the QSS web page detailing fees and charges: Click Here

2 Jurisdiction

Any disputes arising out of this agreement shall be heard by the courts in the jurisdiction nearest to the QSS database area for which the User has subscribed, as follows:

2.1 QSS database area: UK – the courts of England and Wales;

2.2 QSS database area: Australia – the courts of the State of Queensland;

2.3 QSS database area: New Zealand – the courts of New Zealand.

2.4 For Users who are not using any of the QSS database areas specified in 2.1, 2.2 or 2.3 above, the jurisdiction shall be the courts of whichever of the jurisdictions specified in 2.1, 2.2 or 2.3 is the closest (geographically / physically) to the User’s Registration Address.

3 Beta Testing

During the QSS beta testing period the following applies:

  • a. The Customer acknowledges that the QSS System has not been commercially released and is still subject to trialling by the Provider. The Customer accepts that the performance of the QSS System may be deficient in some respects.
  • b. The Customer assigns to the Provider all intellectual property that he or she may be deemed to own that derives from the Customer’s participation in testing of the QSS System.
  • c. The Customer acknowledges that the Provider will charge fees for the Customer’s use of the QSS Service after giving notice to the Customer of the cessation of the beta usage period.