Terms of Service
Terms of Service
Updated: 24 May 2018
The Pointzi Platform provides Mobile App owners, Web site operators and other individuals with a variety of tools and resources (including our website) to enable them to segment, automate, engage communications and content to their App users. Please read these terms of service (“TOS”) carefully. They constitute a legally binding agreement and contain terms limiting our liability to you, exclusions of certain warranties, and terms relating to our access to and use of data collected and analysed by the Pointzi Platform.
These TOS apply to the Pointzi Platform for customers with FREE Plans or PAID Plans.
We reserve the right to change or modify any of these TOS at any time, in our sole discretion. Your continued use of any part of the Pointzi Platform following such a change will constitute your acceptance of such changes or modifications.
BY CREATING AN ACCOUNT, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE Pointzi Platform, YOU AGREE TO BE BOUND BY THESE TOS. If you are using the Pointzi Platform on behalf of a company, you must have the authority to bind that company to these TOS. If you are not willing to be bound by these TOS, you should not complete the registration process and should not use the Pointzi Platform.
The Pointzi Platform is made available by Dealsta PTY LTD ABN 161 497 13342, a division of StreetHawk Inc (“Pointzi”, “Streethawk”, “us” or “we”) to your company (“you”).
The “Pointzi Platform” includes access to:
(i) the Pointzi Platform, documentation, sample code and any fixes, updates and upgrades provided;
(ii) the Pointzi Application Programming Interface (“Pointzi API”), the Pointzi Libraries necessary for you to install and deploy in order to make use of Pointzi functionality;
(iii) the Pointzi Dashboard, analysis, testing, messaging tools and administrative console; and
(iv) a variety of reports related to the behaviour and usage patterns of users using your application (“Reports”). The Pointzi Platform may be used by you for the purposes of app content, communications, monitoring, campaign generation & reporting, messaging, push notifications and analytics according to the Pointzi Plan to which you have subscribed.
We hereby grant you a non-exclusive, non-transferable, limited-term license to (ii) make calls to the Pointzi API and/or (i) install, use and embed the Pointzi Libraries (in executable form only) into your application, each for the purposes of using the functionality offered by the Pointzi Platform in respect of the Pointzi Platform Plan to which you have subscribed.
Access to the Pointzi Platform is limited to those of your employees and contractors who have been issued usernames and passwords by us or you. Your licensee administrator may also ask us (via email) to create logins for third party users who are assisting you with app development and maintenance. Administrator users can set access permissions for other users. You should ensure that details of your administrator users are kept up to date and that you notify us if your administrator users are changed or leave your company. You are responsible for any activity by users issued under your account.
Reports may be distributed within your organisation for the purpose of analyzing your app.
2. SERVICE UPDATES
We update the Pointzi Platform and add new or different features on a regular basis. Provided you are current with fees, you will be granted access to the updated versions of features to which you have subscribed. Optional or new features and functions may be subject to additional fees. We may also adjust or delete certain features from time to time.
3.1 Whether fees are payable by you will depend on the Pointzi Platform Plan to which you have subscribed. Unless we both agree otherwise, no fees are payable on the FREE Plan for usage within the agreed limits. For other PAID Plans, you will have entered into a written Plan Agreement which outlines the access fees payable and other Plan conditions applicable, including the Pointzi Plan to which you have subscribed. The Plan Agreement terms are in addition to these TOS and to the extent there is a conflict, the Plan Agreement will apply.
3.2 If you select or qualify for a PAID plan, the Payment Process commences immediately after your trial period.
a) You may review your Plan & Payment options in the console App settings. Should you require a custom plan, then the agreed attributes of that plan and pricing will be in writing with you directly, variations will be undertaken with your Account Manager.
b) You may then select to pay once or pay a subscription. An option is provided to pay via:
- Credit Card, you will then complete a credit card payment process.
- For customers with a custom plan, an option is available for payment upon Invoice via Bank Transfer.
- Receipt of payment ensures ongoing of the Pointzi Platform with the capabilities for the Plan you have selected.
c) Prior to each anniversary you may receive an email of the upcoming payment that reflects the current applicable plan details and total. This total may vary according to the usage of the application in the previous month. If no action is taken, then the payment will be processed according to displayed total.
d) You may make a change to your plan and billing will be reflected on the next billing anniversary.
e) Subject to clause 9. You may stop using the Pointzi and payment at any time.
The Pointzi Platform collects data regarding the behaviour and usage patterns of users of your application.
The Pointzi Platform is provided on a software-as-a-service, hosted basis. As such, our third party hosting provider (currently Amazon Web Services and Microsoft Azure) will have access to the same data, including App Data, as we do. Our hosting provider is only permitted to process this data for the purposes of providing hosting services to us.
During the Term and after termination Pointzi may maintain, use and publish anonymised App Data. We will not disclose App Data in such a way as to identify you, your application or your users without your (or your users’, as applicable) prior written permission. Pointzi may list the name/logo of your company or your App as a customer either on our website or in communications.
5. SUPPORT SERVICES
Support queries may be logged via email to support[at]Pointzi.com or directly via the Pointzi Platform.
6. YOUR RESPONSIBILITIES
6.1 You may not use the Pointzi Platforms to:
(a) upload, post, send, email, or otherwise transmit or make available:
(i) any content that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, obscene, libellous, hateful, or racially or ethnically objectionable material;
(ii) any content or material that you do not have a right to transmit or any material that infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
(iii) any unsolicited or unauthorised advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other unauthorised forms of solicitation; or
(iv) any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(b) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
(c) interfere with or disrupt the Pointzi Platform or servers or networks connected to the Pointzi Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Pointzi Platform; or
(d) violate any applicable local, state, national or international law or regulation.
6.2 You may not
(a) copy, modify or create derivative works of the Pointzi Platform or portions thereof;
(b) disclose or allow access to the Pointzi API to any third party except to contractors who are assisting you in the development, enhancement or maintenance of your app;
(c) distribute the Pointzi Libraries in any form other than executable, object code form, complied into your app;
(d) disclose the results of any quality, benchmark or performance testing of the Pointzi Platform to any third party without our prior written approval;
(e) work around any technical limitations in the Pointzi Platform;
(f) allow access to, publicly perform or display the Pointzi Platform other than to your employees or authorized contractors to whom we or your administrator users have issued usernames and login details; or
(g) transfer your access to the Pointzi Platform or this agreement to any third party.
7. OWNERSHIP; FEEDBACK
The Pointzi Platform is owned by us and is protected by copyright and other intellectual property laws. All rights not expressly granted herein are reserved by us.
We encourage you to provide feedback on errors or quality issues and suggestions for the improvement of the Pointzi Platform. You agree that we may use feedback that you provide to us in any way, including in future enhancements and modifications to the Pointzi Platform. You grant to us a perpetual, worldwide, irrevocable, royalty free license to use, reproduce, modify, create derivative works of, distribute, and display the feedback for any purpose.
The Pointzi Platform, including the ideas and concepts contained therein and the documentation accompanying the Pointzi Platform, constitutes confidential information of ours. You shall not disclose the details of the Pointzi Platform, or portion thereof, to any third party. This section shall survive termination of this Agreement until and to the extent that such information becomes publicly available. If we have signed a non-disclosure agreement, the terms of such agreement shall also apply to your use of the Pointzi Platform, to the extent that such terms do not conflict with this Agreement.
Exceptions to Confidentiality.
The confidentiality obligations in Section 2 will not apply to Confidential Information that:
(a) is documented in business records as having already been in the lawful possession of, or being information already known to, Receiving Party before its disclosure by Disclosing Party;
(b) was in the public domain at the time of disclosure or which, after such disclosure, enters into the public domain through no fault of Receiving Party;
FREE Plan: Access is on a month-to-month basis and either party may terminate access at any time by giving email notice to the other.
PAID Plans: Unless otherwise agreed in custom and signed Pointzi Platform Plan Agreement, access is on a month-to-month basis. Either party may terminate access by giving the other not less than five (5) business days’ email notice, such notice to take effect at the end of a contract month.
All other Plans: The Term will be as outlined in your Plan Agreement or your specific contract.
Termination by You for Cause
You may terminate this Agreement for cause: (i) upon 30 days written notice to us of a material breach if such breach remains uncured at the expiration of such period, or (ii) if we become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Upon any termination for cause by you, we shall give you a refund of any prepaid fees pro-rated to the effective date of termination.
Termination by Us for Cause
This agreement and your right to use the Pointzi Platform shall terminate automatically if you violate any part of these Service Terms or if you become insolvent. In this case, no refund of pre-paid fees will be provided by us.
Termination by Us for Idle Accounts
For FREE plans, where your account is inactive for a period of ninety (90) days, your right to use the Pointzi Platform shall terminate automatically and immediately.
If you are late making payment of applicable fees, we will notify you and you will have fifteen (15) days to remedy such late payment. If you have not made payment within that period, we may terminate your access to the Pointzi Platform without liability to you.
If you are in breach of any of the terms of this Agreement, we may suspend access to the Pointzi Platform in addition to any other rights we have in law.
Effects of Termination
Upon termination, you will stop using the Pointzi Platform (and you acknowledge that we may terminate your account). On termination you will remove the Pointzi Libraries from your app and cease all use of the Pointzi Libraries and Pointzi API. Unless this agreement has been terminated for your breach, insolvency or non-payment of fees, you need not remove the Pointzi Libraries from your app immediately but must do so within a reasonable period.
You acknowledge that, on termination of the Pointzi Platform, your App users may not have access to some features that depend on the Pointzi API.
Unless your access to the Pointzi Platform has been terminated for non-payment, insolvency or for breach of these TOS, we will maintain your App Data for a period of not less than thirty (30) days. We are not obliged to maintain App Data for longer than this period.
(i) For PAID Plans, upon written request we will make it available to you to download in a format and time reasonably determined by us.
(ii) For FREE Plan, at your own cost, you may export data from the console via printout, export or via relevant API calls during this period.
For (i) and (ii) You should be aware that after this period, all App Data may be deleted permanently and may not be retrievable.
(iii) Terminations for non-payment, insolvency or for breach of these TOS, may have data removed IMMEDIATELY. All App Data may be deleted permanently and may not be retrievable IMMEDIATELY.
We warrant that the Pointzi Platform will operate substantially and materially in accordance with its specifications and documentation on the Pointzi website.
Features and Reports are provided on an AS IS basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose and non-infringement.
We do not warrant that access to the Pointzi Platform will be uninterrupted or that the Pointzi Platform or Reports will be error-free.
11. LIMITATION OF LIABILITY
In no event shall we be liable for any indirect, special, incidental or consequential damages whatsoever arising out of the use of or inability to use the Pointzi Platform, whether based on contract, tort or other legal theory, even if we have been advised of the possibility of such damages.
FREE Plan: If we are held liable for any reason under this Agreement or in relation to the Pointzi Platform, in no event will our liability exceed AUD$10.00.
PAID Plans: If we are held liable for any reason under this Agreement or in relation to the Pointzi Platform, in no event will our liability exceed the fees paid by you in respect of the Pointzi Platform for the previous twelve (12) months.
12. ENTIRE AGREEMENT
These TOS, the Plan Agreement (if any) constitute the complete and entire agreement of the parties and supersede all previous communications, oral or written, and all other communications between us relating to the use of the Pointzi Platforms. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.
If any provision of this Agreement is judged to be unenforceable, that provision shall be amended to the extent necessary to make it enforceable.
14. APPLICABLE LAW
The Agreement shall be governed by the laws of the State of NSW Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Sydney, New South Wales, Australia.
15. CONTACT ADDRESS
Please send any contract requests to email@example.com.