SMARTSPOTTER

END USER LICENCE AGREEMENT & TERMS OF USE

SmartSpotter Australia Pty Ltd ABN 25 602 319 933

INTRODUCTION

1. This End User Licence Agreement & Terms of Use constitutes a legally binding agreement (“Agreement”) between you as a User and SmartSpotter Australia Pty Ltd ABN 25 602 319 933which governs your use of the SmartSpotter Software.

2. By subscribing to, accessing, downloading and using the Software, you warrant your acceptance of and agree to be bound by the terms and conditions of this Agreement as set out below.

3. If you do not accept the terms of this Agreement you are not authorised to subscribe to or use the SmartSpotter Software.

 

OPERATIVE PART

1. Meaning of words

In this agreement:

1. Business Days means business days in New South Wales, Australia;

2. Client refers to any client of SmartSpotter who commissions Tasks accessed by the User through the use of the Software;

3. Content refers to all information and content within, accessed through and generated by the Software;

4. Fee and Fees means the fee payable to you by SmartSpotter for the completion of Tasks, as set out in Schedule 1;

5. Intellectual Property means, whether registered or not, all copyright, designs and industrial designs, circuit layouts, trademarks, service marks and commercial names and designations, trade secrets, know-how confidential information, patents, invention and discoveries, literary artistic and scientific works, inventions in all fields of human endeavour, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

6. Notice includes a disclaimer, a disclosure or other statement and a consent provided in writing;

7. related body corporate has the meaning given in the Corporations Act 2001 (Cth);

8. SmartSpotter, we, us and our refer to SmartSpotter Australia Pty LtdABN 25 602 319 933 and any of its related bodies corporate to which this agreement applies;

9. Software means the software licensed, developed and amended from time to time by us;

10. Tasks means the assignments generated by the Client, accessed, viewed, applied for and completed by the User through the use of the Software;

11. User and you means you the end-user of the Software;

12. website refers to www.smartspotter.com.au and any variation or tailored version of the website created for your use; and

13. the singular includes the plural and vice versa.

 

2. Licence to use the Software

1. We grant you a limited, non-exclusive, non-transferable licence to access, download and use the Software in order to:

1. view, apply for and complete Tasks as available from time to time;

2. view and amend account information including submitting payment requests; and

3. access the Content.

2. The licence granted under clause 2(a):

1. is granted until such time as this Agreement is terminated;

4. does not constitute a sale of the Software;

5. does not include any right to sublicense the Software; and

6. is subject to your compliance with the terms of this Agreement.

 

3. User obligations

   1. You are responsible for your use of the Software. This includes but is not limited to:

1. maintaining the security of user names and passwords required for use of the Software;

2. maintaining adequate security measures to prevent unauthorised or inappropriate use of the Software;

3. ensuring adequate configuration, operation and maintenance of any computer and communication systems used with the Software; and

4. establishing and maintaining adequate backup and recovery systems to minimise and prevent adverse consequences in the event that the Software malfunctions.

2. You acknowledge that you have relied on your own skill, knowledge, experience and judgement to verify that the Software meets your requirements and that you are not relying on any implied warranty of fitness for your needs.

3. You acknowledge that you are not an agent, employee or assignee of SmartSpotter or the Client and are undertaking Tasks as an independent contractor subject to this Agreement.

4. You are responsible for any fines, taxes and other payments due to public authorities directly or indirectly incurred by you through your use of the Software and your undertaking of the Tasks. This includes the reporting of income to relevant taxation bodies and other government authorities.

5. You must not submit photos to SmartSpotter using the Software that are not relevant to the completion of a Task. This includes but is not limited to:

1. sexually suggestive photos;

2. photos that depict violence; or

3. photos that contain copyrighted material.

You must not take photos of other persons while using the Software.

2. You must comply with any conditions of entry of retail stores entered while using the Software, including any reasonable directions of retail store owners, employees, security or shopping centre staff.

3. While using the Software, you must comply with any request or direction by relevant persons including but not limited to those included in clause 3(f), to leave the premises of a retail store, shopping centre or related area.

4. We may withdraw or amend Tasks at any time without the payment of any Fee or other amount to you.

5. You must not sub-contract, outsource or otherwise arrange for the completion by another person or agent of the Tasks.

4. User accounts

   1. To access and use the Software, you will need to open an account with SmartSpotter. You will then be able to log in to the Software via an Internet Browser, or by downloading the Software onto a mobile device.

   2. To use our Software, you must be located within Australia, and be 18 years or older.

   3. You are responsible for maintaining the security and confidentiality of your user credentials and password and ensuring that these details remain accurate and up-to-date.

   4. You are responsible for any and all activities that occur under your User account. You agree to notify us immediately of any unauthorised use of your account or any other breach of security.

   5. We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be held liable for losses incurred by us or another party due to someone else using your account or password.

   6. We may block your account without notice if:

      1. we believe you are committing fraud;

      2. we believe you are trying to influence the results generated by the completion of the Task; or

      3. we believe there has been a breach of this Agreement.

   7. You may not use anyone else's account at any time, nor assign or transfer your account to any other person.

   8. You agree to maintain and update your user information, data and password as required to keep it accurate, current, and complete.

   9. You agree that we may store and use the information and data you provide us. All personal information will be held and used in accordance with our Privacy Policy [INSERT HYPERLINK].

   10. You agree that your payment information will be held by us for use in maintaining your accounts and for the payment of Fees to your account.

   11. You acknowledge and agree that we may establish general practices and limits for the use of the Software, including without limitation:

       1. the maximum number of days that content will be retained;

       2. the maximum disk space that will be allotted on our servers on your behalf; and

       3. the maximum number of times (and the maximum duration for which) you may access the Software in a given period of time; and

   12. You agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted by or via the Software.

 

5. Software updates and modifications

   1. We do not make any warranty that we will release updates, service packs, patches or hot fixes in relation to any defects in the Software. Any updates to the Software will be made at our sole discretion.

   2. We may modify the Software at any time in accordance with our normal maintenance and update release process, and if you are dissatisfied with a modification your sole remedy will be to cease using the Software.

 

6. Fees and payment

   1. The Fees payable to you by SmartSpotter are paid in accordance with Schedule 1.

   2. We make payments on the Friday following the receipt of a payment request. You may request to be paid in the following ways:

      1. Automatically once your account balance reaches AU$20 or more; or

      2. By submitting a manual payment request.

 

3. If a manual payment request is submitted for an account with a balance less than AU$20, a transaction fee of AU$0.50 will be charged to the account. We may deduct this transaction fee from any amount paid to you.

4. SmartSpotter may withhold, amend or cancel payment if it does not deem the Task completed by the User. We are not required to provide reasons for the approval or rejection of User submissions.

 

7. Limitation of liability

   1. To the extent permitted by law, we exclude the application of all terms, conditions, warranties and representations express or implied by statute or otherwise.

   2. To the maximum extent permitted by law we do not warrant that the Software or Content is free from defects or that it will perform in compliance with any specifications, laws or your requirements. We do not guarantee uninterrupted access to and use of the Software and Content at all times.

   3. Neither we, nor any of our employees, agents or officers are liable to you for any direct or indirect loss, harm or liability, or any costs, charges or expenses you or a third party may incur in connection with or arising from us providing the Software or Content or your undertaking of the Tasks including but not limited to any interruption, inaccuracy, error, or omission, regardless of cause.

   4. This limitation exists whether your claim would otherwise arise in contract, under the law of torts (including negligence), by statute or otherwise.

   5. Our liability for a breach of a condition or warranty implied by law or otherwise, and which cannot be excluded, is limited to the extent possible, at our option, to:

      1. correcting and resupplying the Software or Content;

      2. supplying a workaround for defects in the Software; or

      3. the amounts paid to you for Tasks you performed in the last 12 months, in which case the licence to use our Software and this Agreement will be terminated.

8. Indemnity

   1. You agree to indemnify, and hold us harmless from any claims, actions, damages or demands relating to or arising out of your use of the Software or Content or undertaking of the Tasks including:

      1. your use or misuse of the Software;

      2. any violation of this Agreement by you;

      3. any violation of third party rights by you; and

      4. any unlawful, wilful or negligent act or omission by you.

 

9. Software security

   1. We do not guarantee that information or media transmitted over the internet and/or through the Software is totally secure. Therefore, when you or Clients use the Software or Content or provide any information through the Software you do so at your own risk. We take reasonable steps to keep all data and information secure while it is in our own systems but we do not guarantee that it is secure.

   2. Your use of our Software and Content is at your own risk. We do not guarantee that our Software is free from viruses, or that access to our Software will be uninterrupted.

 

10. Information about you & your privacy

    1. When you download and use our Software, we may collect personal information about you, including your credit card or payment details. Ordinarily, we tell you the purposes for which we collect that information when it is collected. As a general rule, we only collect such information which is necessary for us to provide our product to you or to maintain our relationship with you.

    2. Our  Privacy Policy sets out how we collect and deal with personal information generally, including our use of cookies on your device(s). Our Privacy Policy forms part of this Agreement, and if inconsistent with this Agreement, this Agreement will take precedence.

    3. By downloading, installing and using the Software you acknowledge and agree with our Privacy Policy, and consent for us to collect and disclose your personal information as necessary to provide the product to you.

 

11. Third party websites

1. The Software may contain links to other products and services of third parties. We do not endorse or otherwise approve the owners or operators of the third party business, third party website, or the information, graphics and material on those websites or the goods or services (including software) offered on those websites.

2. To the extent permitted by law, we are not responsible or liable for, and give no warranty in respect of, any third party website, application or the goods and services (including software) offered by a third party or any information appearing in any product or service we may offer.

3. We may receive payments from third parties in relation to goods or services supplied or received as a result of users and third parties accessing third party services or any links to third party applications or websites contained in our Software or website.

4. Third party applications and websites are not subject to our privacy standards so you should review the privacy policy and any other relevant notice that appears on a third party application or website.

 

12. Intellectual Property

    1. You acknowledge all Content and Intellectual Property held, located within and related to our Software is the property of SmartSpotter and its related bodies corporate and protected by Intellectual Property law. Nothing in this Agreement conveys or vests to you any interests or ownership in SmartSpotter’s Content or Intellectual Property.

    2. Any improvements, suggestions, ideas, enhancement requests, feedback, recommendations, templates, libraries or other software or information you provide to or jointly develop with SmartSpotter, that becomes a part of the Software shall belong solely to SmartSpotter.

    3. Other than for the purposes and subject to the conditions prescribed under the Copyright Act 1968 (Cth), you must not reproduce, upload to a third party, link to, frame, store in a retrieval system or transmit any part of the Software or Content without our prior written consent.

    4. Our Software and Intellectual Property includes trade marks owned by us (or our related bodies corporate). You must not use any of these trade marks in any way without our prior written consent.

    5. You must not, without our prior written consent, redistribute or resell the Software or Content or the Intellectual Property in the Software or Content.

    6. You agree that you will not do or cause to be done any act or thing that may impair any of SmartSpotter’s Intellectual Property rights in connection with the Software or Content.

    7. You agree that you must not:

       1. copy, sell, market, license, sublicense, lend, loan, distribute, transmit, rent, lease, upload, post, electronically transfer or otherwise assign or transfer or directly or indirectly permit any third party to use, access, exploit or copy any part of the Software or Content;

       2. copy ideas, features, functions or graphics of the Software or Content for use in another product or service; or

       3. incorporate or use the Software or Content in whole or in part in any other software, service or product.

 

13. Permitted use and licence

    1. You agree not to use the Software or Content:

       1. for any purpose that is unlawful or prohibited by this Agreement;

       2. in any manner that could damage, disable, overburden, or impair our server, or the network(s) connected to our server, or interfere with any other party's use and enjoyment of the Software;

       3. to attempt to gain unauthorised access to any service, other accounts, computer systems or networks connected to our server through hacking, password mining or any other means;

       4. to attempt to obtain any materials or information through any means not intentionally made available through our Software;

       5. to offer or provide a commercial bureau or application service provider service;

       6. to transmit or otherwise make available any content or media that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

       7. to impersonate any person or entity;

       8. to transmit or otherwise make available any content that you do not have a right to make available under any law or which infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

       9. to transmit or otherwise make available any unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation unless expressly authorised to do so;

       10. to stalk or otherwise harass another; or

       11. to collect or store personal data about other users.

    2. You agree to not:

       1. modify, customise, reverse engineer or disassemble the Software;

       2. input or store materials into or in the Software containing software viruses, worms, trojan horses or other harmful computer code, files scripts, agents or programs;

       3. interfere with or disrupt the integrity or performance of the Software; or

       4. circumvent, alter or modify disabling mechanisms which may be resident in the Software or mechanisms that control access to use of the Software.

    3. We have the right (but not the obligation) in our sole discretion to:

       1. refuse the transmission of any Content via the Software;

       2. refuse access to or use of the Software;

       3. move any Content that is available via the Software;

       4. to remove any Content that violates this Agreement or is otherwise deemed by us to be objectionable;

       5. preserve or disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any content violates the rights of third-parties; or (d) protect our rights, property or the personal safety of our staff, other users and the public; and

       6. to amend, withhold or cancel payment of Fees to you.

    4. As a condition of your use of our Software, you authorise us to include you or your organisation’s name in our published list of users.

 

14. Termination and modification of Software

    1. We may in our sole discretion immediately suspend, terminate or limit your access to the Software or Content if:

       1. we deem that you are in breach of this Agreement or our Privacy Policy; or

       2. we deem that your use of the Software is low and warrants termination of your access.

    2. We will notify you of such suspension, termination or limitation by email within five (5) business days. You agree that we will not be liable to you or any third-party for any termination of your access to the Software or Content.

    3. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Software or Content (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Software, Content or our related services.

 

15. Notice

SmartSpotter may give Notice under this Agreement by means of notice on the Software, on our website, or by email.

 

16. Jurisdiction, severability and waiver

1. The information in our Software and this Agreement have been prepared in accordance with the laws of the New South Wales and the Commonwealth of Australia. The Software may not comply with the laws of any other State or country.

2. The terms and conditions of this Agreement will be construed in accordance with the laws in force in the State of New South Wales, and we both agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

3. If any provisions of this Agreement become void, voidable or unenforceable then those provisions are deemed to be severed and the remaining provisions will continue to have full force and effect.

4. Any failure or delay by SmartSpotter in exercising any right, power or privilege available to us will not operate as a waiver of that power or right.

 

17. Changes to this Agreement

    1. This statement sets out our current End User Licence Agreement for our Software. It replaces any other Licence Agreement which we have previously issued.

    2. We may amend this Agreement (including the fee schedule) at any time. If we do, we will inform you of any update by way of e-mail. By accepting this Agreement, you agree that our publishing of an amended version will be sufficient notice of any changes and that your subsequent access to, viewing, reliance on or other use of the Software will constitute your acceptance of those amendments.

    3. Changes to the fee schedule or Referral Terms will take effect 30 days after this change is published on our website.

    4. We suggest you periodically review our website for any changes.

    5. All information within the Software is subject to change without notice.

 

18. Contacting us

If you have any questions regarding this Agreement please contact us at info-au@smartspotter.com.au.

Schedule 1 – Fees

 

 

With SmartSpotter, users indicate how and you would like to get paid.

 

When users have earned $20.00 or more, they can choose to have this amount paid out automatically or accrue more compensation first and determine when you will be paid.

 

If users have accrued less than $20.00 in their SmartSpotter account and wish to be paid, we will charge a $0.50 transaction fee.

 

Users can login on the website and under the Payment section, they can indicate how they want to be paid. Automatically or Manually requested.

 

Note: Money transfers can take up to 5 working days to reach the users’ accounts