The Global Polling Terms of Service (also known as the “agreement”), including Exhibit A, the Data Processing Addendum (attached), is a legally binding understanding between Global Polling, Pty Ltd, an Australian Pty Ltd company and you, the user, referred to as “you” herein. Global Polling may heretofore be referred to as “Global Polling,” “we,” or “us.” Collectively, you and Global Polling are referred to as the “parties.”
The rights and obligations of both parties are set forth in this agreement regarding the use of Global Polling’s service (as defined below) on your website. Prior to using our service, you are required to read and accept these Terms of Service (the agreement), as well as any “work order” that applies.
By using Global Polling’s service, you agree that you are authorized to accept this agreement on behalf of yourself individually or on behalf of your company (you, collectively) and that you are bound by this agreement that has been entered into between you and Global Polling.
This agreement restricts your use of Global Polling’s service to the terms defined herein. You agree that Global Polling bears no liability should your account be used by a third party, or should you use Global Polling’s service through a third party’s account, regardless of their acts or omissions.
1. DESCRIPTION OF SERVICES
You may obtain statistics based on the voting of website visitors using Global Polling and the Global Polling API (application programming interface). Known collectively as the “service,” the Global Polling API includes the Global Polling “software,” the Global Polling website, and the Global Polling “dashboard,” as subject to these Terms of Service.
With regard to your use of the service, Global Polling are required to comply with privacy laws and regulations and are required to provide to any required notices to individuals.
3. AGREEMENT TO PROVIDE THE SERVICE
These Terms and Conditions are valid for the Global Polling service until this agreement is cancelled, terminated, or rescinded, as per its terms. By agreeing to these Terms of Service, you represent, warrant, and covenant that you are eligible for Global Polling service and agree to use the service as allowed herein.
Your failure to use the software on the Global Polling website in accordance with Global Polling’s documentation does not obligate Global Polling to provide customer service for malfunction of the service, nor does it hold Global Polling responsible or liable for such a malfunction or failure of the service.
The current version of this agreement applies each time you implement the Global Polling service. Therefore, it is your responsibility to check the date of the Terms of Service and make note of any changes since the previous version. If at any time you disagree with the Terms of Service, you must stop using the service. Global Polling reserves the right to refuse access to any user of the service.
4. LICENSE; OWNERSHIP
Outside of those rights granted expressly herein, no further rights are granted. This includes without limitation any and all copyrights, patents, trademarks, moral rights, service marks, trade secrets, publicity rights, and other proprietary rights (regardless of whether or not they are perfected or perfectable), also known as “intellectual property rights.” No part of this agreement grants you rights to any Global Polling software source code or intellectual property relating to it. Ownership, title, and intellectual property rights reside with Global Polling and/or its licensors. By consenting to these Terms of Service, you agree that Global Polling may change or discontinue any part of its service without notice to you. Global Polling may release upgrades or fixes for the service but is under no obligation to do so, and these changes may vary across platforms and devices.
All data and information that is created, provided, processed, and/or received by Global Polling as part of the service or that result from execution of the service is to be considered “traffic data.” You will own all the rights to the traffic data, subject to the licenses and rights granted in this agreement. Global Polling, for the purposes of improving service or algorithms, may use this data or share it with third parties, in the aggregate or in anonymous form, including your service use, along with data from other customers.
All aggregated and/or anonymized traffic data remains the exclusive property of Global Polling. By agreeing to these terms of service, you grant Global Polling the rights to access and use the aforementioned traffic data, acquired during your use of the service for as long as this agreement applies. If for any reason, including the laws of your jurisdiction, this assignment is not effective, by agreeing to these terms, you grant Global Polling an exclusive license to
use the traffic data in perpetuity (transferable, sub-licensable, royalty free, and fully paid up).
6. YOU AGREE TO:
Use the Global Polling service solely for lawful purposes and in compliance with Global Polling website policies or policies conveyed by electronic notice;
Not use the Global Polling service in any manner that prevents or inhibits other users from utilising the service;
Not obtain or attempt to obtain the communications protocol for accessing the Global Polling service;
Not alter by removing, obscuring, or modifying any indications or notices regarding Global Polling intellectual property rights, trade names, service marks, logos, trademarks, trade dress, or other proprietary symbols, designs, labels, and/or designations (AKA “branding”), and/or any electronic notices;
Not interfere with, nor attempt to interfere with, any transmissions originating from or travelling to the Global Polling service servers, nor compromise system integrity and/or security;
Not take action that imposes an unreasonable load on the Global Polling infrastructure;
Not to challenge or help others challenge Global Polling intellectual property rights and/or branding, or the registration and application thereof;
Not to transmit or post “sensitive data” as defined below to the Global Polling servers.
7. PREVENTING TRANSMISSION OF SENSITIVE DATA
“Sensitive data” includes but is not limited to social security numbers and other government-issued identifiers, payment or credit/debit card data, passwords, log-in credentials, political opinions, racial or ethnic origins, philosophical or religious beliefs, trade union membership, genetic information, biometric data, health data, and data regarding the sexual orientation or sex life of a natural person.
You may not use the Global Polling system features to transmit or permit the transmission of sensitive data. Global Polling dynamic recordings will capture the HTML content of any page used by a visitor. If that page displays sensitive data, you are required to use one of Global Polling’s preventive measures to prevent the transmission of said sensitive data to the Global Polling servers, as stated in our documentation.
8. FEES AND PAYMENT
Global Polling bills customers once per year (annually) on a recurring basis for annual plans. Fees for use of the service shall be paid in AUD dollars. Service fees include all banking fees, as well as federal or state taxes, levies, and duties.
Global Polling does not issue refunds for service fees, including for periods of customer inactivity. Thirty (30) days’ notice is required to change the price of Global Polling service to you. Posting fee changes on the Global Polling website satisfies such notice. Global Polling cannot be held liable to you or any third party for changes to the Global Polling service, including modifications, price changes, or suspension or discontinuation of service.
9. EARLY TERMINATION FEE
There is no early termination fee on annual contracts.
10. WARRANTY DISCLAIMER
GLOBAL POLLING PROVIDES NO WARRANTY OF ANY KIND FOR THE SERVICE, INCLUDING EXPRESS, IMPLIED, OR STATUTORY, AS WELL AS WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON-INFRINGEMENT. GLOBAL POLLING’S SERVICE IS OFFERED “AS IS” AND “AS AVAILABLE.” YOU AS THE USER ASSUME ALL RISK WHEN YOU IMPLEMENT THE SERVICE, WITHOUT LIMITATION, INCLUDING HARM CAUSED BY VIRUSES, WORKS OR
OTHER DAMAGE. GLOBAL POLLING GUARANTEES NO RESULTS, INCREASED TRAFFIC, OR ENGAGEMENT BY USERS FOR YOU.
GLOBAL POLLING OFFERS NO WARRANTY THAT THE SERVICE IS ACCURATE, FREE OF BUGS. THERE IS NO WARRANTY THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR THAT ITS OPERATION WILL NOT AFFECT OTHER SOFTWARE OR HARDWARE IN A NEGATIVE WAY. THIS SECTION APPLIES AS ALLOWED BY RELATED LAW TO THE MAXIMUM EXTENT. GLOBAL POLLING’S SERVICE IS PROVIDED FROM ITS FACILITIES IN AUSTRALIA. GLOBAL POLLING OFFERS NO GUARANTEE THAT ITS SERVICE IS AVAILABLE OR APPROPRIATE IN OTHER COUNTRIES. IF YOU ACCESS THE GLOBAL POLLING SERVICE FROM ANOTHER JURISDICTION, YOU DO SO AT YOUR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH YOUR LOCAL LAWS. THIS INCLUDES BUT IS NOT LIMITED TO THE COLLECTION OF DATA FROM THE END USERS OF YOUR WEBSITE.
11.LIMITATION OF LIABILITY
NEITHER GLOBAL POLLING NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES WILL BE LIABLE IN ANY EVENT FOR (i) ANY DAMAGES (INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE) RESULTING FROM OR RELATED TO YOUR USE OF THE SERVICE, YOUR MISUSE OF THE SERVICE, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, OR YOUR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, THE COST OF PROCURING ANOTHER SERVICE, PERSONAL INJURY, PROPERTY DAMAGE, REGARDLESS OF WHETHER GLOBAL POLLING WAS OR SHOULD HAVE BEEN NOTIFIED OF SUCH DAMAGE; (ii) ANY CLAIM RELATED TO INACCURACIES, ERRORS, OR OMISSIONS OF THE SERVICE OR ITS DESTRUCTIVE PROPERTIES; (iii) ANY CLAIM THAT RESULTS FROM YOUR FAILURE TO COMPLY WITH PRIVACY AND DATA PROTECTION LAWS AND REGULATIONS. GLOBAL POLLING’S AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE SHALL NEVER EXCEED THE TOTAL OF YOUR FEE FOR TWELVE (12) MONTHS OF GLOBAL POLLING SERVICE PRIOR TO AN EVENT RELATED TO SUCH LIABILITY.
YOU, AS A USER OF GLOBAL POLLING’S SERVICE, AGREE AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND, AND HOLD HARMLESS GLOBAL POLLING, AS WELL AS ITS LICENSORS AND THEIR
DIRECTORS, OFFICERS OWNERS, EMPLOYEES, AND AGENTS, FROM ALL EXPENSES, INCLUDING ATTORNEYS’ FEES, CLAIMS, DEMANDS, LOSSES, AND LIABILITIES, ARISING FROM (i) YOUR USE OF GLOBAL POLLING’S SERVICE; (ii) THIRD PARTY ACTIONS, CLAIMS, OR ALLEGATIONS OF INFRINGEMENT RELATED TO DATA, INFORMATION, OR CONTENT YOU PROVIDED AS A RESULT OF USING THE SERVICE; (iii) ANY INSTANCES OF FRAUD, MANIPULATION, OR BREACH OF THESE TERMS OF SERVICE BY YOU; (iv) THIRD PARTY ACTIONS, ALLEGATIONS, OR CLAIMS BROUGHT AGAINST GLOBAL POLLING RELATED TO YOUR USE OF THE SERVICE OR GLOBAL POLLING’S WEBSITE; OR (v) ANY CLAIM ARISING FROM A BREACH OF APPLICABLE DATA PROTECTION AND PRIVACY LAWS AND REGULATIONS BY YOU, YOUR AFFILIATES, YOUR EMPLOYEES, YOUR CONTRACTORS, OR YOUR AGENTS. GLOBAL POLLING RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AT GLOBAL POLLING’S OWN EXPENSE AND AT GLOBAL POLLING’S SOLE DISCRETION.
13.TERM AND TERMINATION
Termination of Global Polling Service.
You or Global Polling may terminate this agreement with you as a customer, partially or in its entirety, at any time, for any reason, and if you initiate termination, you shall not be required to pay any service fees accrued prior to the date of your termination. To terminate this agreement, access your Account Settings in your dashboard, and follow the instructions provided. We reserve the right to permanently or temporarily terminate, suspend, or refuse the use of the service with reasonable prior notice without incurring liability if we find you have violated or are likely to violate this agreement, including but not limited to nonpayment of your fees.
14.CHOICE OF LAW
This agreement and the rights of all parties hereunder falls under the jurisdiction of the laws of Australia, with the exception of conflict or choice of law rules. By agreeing to these terms and conditions, you acknowledge that this is an interstate commerce transaction. Any arbitration arising from the terms of this agreement will be governed by the Federal Arbitration Act, notwithstanding the aforementioned substantive law.
15. AGREEMENT TO ARBITRATE Arbitration.
To whatever degree feasible, any disputes, claims, or controversy related to your use of the Global Polling site and service, this agreement, or the breach, termination, enforcement, interpretation, and validity of this agreement will be resolved via arbitration (a “dispute”) allowing for discussion and negotiation between the parties by phone, electronic correspondence, or written correspondence.
If a dispute between the parties cannot be resolved with good faith discussions, a single arbitrator will be appointed to determine the dispute via arbitration. All arbitration will be administered by Australian Arbitrators from Australian Disputes Centre (“ADC”), following the ADC Consumer Arbitration Rules. Any judgments required will be entered into courts with the appropriate jurisdiction. This does not preclude the parties involved from seeking out other provisional remedies from an appropriate court in aid of arbitration.
Conduct of Arbitration.
The claimant party in arbitration will file a demand for arbitration with the ADC administrator and will serve a demand on the opposing party. The parties will select an arbitrator using the ADC Consumer Arbitration Rules for appointment within thirty (30) calendar days of the demand filing. Unless required by law, neither the arbitrator nor either party may disclose the results, content, or existence of arbitration without the prior written consent of both parties. The arbitrator will provide an opinion and written statement on the essential findings, conclusions, and award in the arbitration.
The costs and expenses of arbitration will be allocated between the parties by the arbitrator, who may award attorneys’ fees. Each of the parties is responsible for their counsel’s fees during the arbitration process. A judgment placed on any award decided by the arbitrator will be entered into an appropriate court with jurisdiction over the parties, their assets, or means of enforcement, as needed. The award returned by the arbitrator will be the sole and exclusive remedy for the parties involved. All parties hereby waive the right to judicial review of any decision returned by an arbitrator, including any award.
Limitation of Liability.
The arbitrator may not award incidental, indirect, or consequential damages, including damages for lost profits and punitive or exemplary damages, in any arbitration proceedings related to these Terms and Conditions.
Arbitration is on an Individual Basis Only; Class Action Waiver.
PARTIES IN ARBITRATION AGREE TO ARBITRATE EXCLUSIVELY ON AN INDIVIDUAL BASIS. THIS AGREEMENT DOES NOT ALLOW FOR CLASS ARBITRATION NOR DOES IT PERMIT CLAIMS BROUGHT AS A CLASS MEMBER IN ANY CLASS ARBITRATION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS (THEREBY CREATING A CLASS) AND MAY NOT PRESIDE OVER ANY CLASS PROCEEDINGS. THE ARBITRATOR IS NOT GIVEN THE POWER TO RULE ON THE ENFORCEABILITY OR VALIDITY OF THIS AGREEMENT.
Headings in this agreement serve an organizational purpose only and in no way affect how it may be interpreted.
You may not transfer your rights, delegate your obligations, or otherwise transfer your rights related to this agreement, partially or in their entirety, and any attempt to do this renders the assignment null and void.
Third Party Service Providers.
It is Global Polling’s right to provide the service directly or indirectly via third party vendors, service providers, or contractors. Global Polling is not responsible or liable for any failures or damages resulting from using the service that are attributable to networks, telecommunications, or equipment, or other third parties.
By agreeing to these Terms and Conditions, you consent to the use of your name, trademarks, or service marks in Global Polling’s promotional materials.
If this agreement expires or is terminated, the following sections will survive.
If any part of this agreement is deemed invalid or unenforceable by a court of appropriate jurisdiction, that part of the agreement will be limited or eliminated as necessary, leaving the remainder of the agreement in full force and enforceable between the parties.
Should either party in this agreement fail to act in a breach of the agreement, this does not constitute a waiver of said breach nor a waiver of breaches in the future.
All notices submitted under this agreement will be in English and in writing, sent to Global Polling at: [email protected] or the email or physical address associated with your Global Polling account. You hereby agree to receive any notices relating to Global Polling services or these Terms and Conditions without needing a handwritten signature to render the notice effective.
Neither party bears liability for failure or delay to perform its obligations, with the exception of payments, due to conditions beyond the parties’ reasonable control, including but not limited to natural disasters and other acts of God, acts of terrorism, governmental action, power failures, labor conditions, and Internet disruption.
This agreement constitutes the entire agreement between the parties relating to the Global Polling service and the contents of this agreement.
Revisions to this Agreement.
This agreement may be modified as needed by posting a revised agreement on the Global Polling website or by providing the new agreement to you. Once you use the service after the revised agreement has been published, the new agreement becomes effective. By continuing to use the service, you accept any revised terms in the agreement.
WHEREAS, the Global Polling service is implemented via the company website;
WHEREAS, on behalf of the company and in providing the service, Global Polling will process information about identified or identifiable natural persons (“personal data”),
WHEREAS, the parties want to ensure each party’s compliance with the applicable laws and regulations for the collection, processing, sharing, and disclosure of personal data related to the service (“personal data regulations”),
NOW, THEREFORE, in consideration of the aforementioned and the agreement, the parties hereby agree:
A. DATA PROCESSING REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
The Parties represent, warrant, and agree, as follows:
- That Global Polling will process personal data solely for the purposes of executing the service, will comply with company documentation for the processing of said data, and will not process personal data for its own use, except when authorized by the agreement or otherwise granted written permission.
- That Global Polling has obtained the proper consents for the use and disclosure of personal data or that the use of the data is otherwise in compliance with personal data regulations.
- That each party will adhere to the personal data regulations regarding and not limited to taking technical and organizational measures to protect personal data from accidental or unlawful loss, alteration, and destruction, as well as unauthorized disclosure or access.
- That Global Polling will require anyone who processes personal data to maintain appropriate confidentiality as required by the personal data regulations, or will confirm that these individuals processing personal data are obliged to follow confidentiality regulations.
- That Global Polling will respond to requests regarding rights protected under personal data regulations relating to notice, choice, access, and the resolution of data privacy complaints.
- That Global Polling will provide information required to evaluate data protection.
- That Global Polling will provide required documentation related to its processing of personal data, including and not limited to privacy policies.
- That Global Polling will cooperate with requests for information pertaining to audits or other inspection of the processing of personal data, provided such inspections are not disruptive in time or scope to Global Polling’s business.
9. That Global Polling will provide notification that it can no longer provide protection for personal data as outlined in the personal data regulations and will provide this notification no later than 48 hours after making such a determination.
10.That, should unauthorized processing of personal data occur, a party will take reasonable steps to stop and remediate the processing and notify the other party within 24 hours of their discovery.
11.That, should any unauthorized data processing constitute a data breach under personal data regulations, both parties will cooperate to respond and provide any notification obligated by personal data regulations.
12.That Global Polling will not retain personal data in the form of documents or records, electronic or otherwise, for longer than what is necessary to execute the service.
13.That Global Polling will delete or return all personal data upon completion of the service or termination of the service, in accordance with the following:
- If requested, Global Polling will delete personal data by the later of (i) 30 days after the request or (ii) the previously agreed upon date for the deletion of said data;
- If the return of personal data is requested, Global Polling will return said data in a format that is mutually agreed upon;
- Global Polling will delete any an all remaining copies of personal data once the data has been deleted or returned as described above, unless Global Polling is required by law to retain such data.
14. That Global Polling may engage third parties to assist with providing the Service (“sub-processors”), including processing personal data necessary to provide the service, provided that Global Polling makes proper notification of using sub-processors and allows for the addition or replacement of sub-processors as required by personal data regulations.
15. That a party will notify the other party, promptly and in writing, about (i) any requests from a law enforcement agency for disclosure of personal data (unless otherwise prohibited), (ii) any unauthorized or accidental access to confidential personal data, and (iii) any requests from a
subject of the data, without responding to said request, unless it has been authorized to respond.
B. LIMITATION OF LIABILITY.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR DAMAGES DUE TO ERROR, OMISSION, OR COMMISSION THAT EXCEED THE AMOUNTS PAID UNDER THE TERMS AND SERVICES, UNLESS SAID DAMAGES ARE THE RESULT OF A PARTY’S GROSS NEGLIGENCE, BAD FAITH, WILLFUL MISCONDUCT, OR FAILURE TO COMPLY WITH PERSONAL DATA REGULATIONS OR OTHER LAWS OR REGULATIONS. THIS LIMITATION OF LIABILITY IS NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ITS ADDENDUM. ADDITIONALLY, NO PARTY SHALL BE LIABLE FOR ANY LOST PROFITS OR DAMAGES (EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL), REGARDLESS OF WHETHER ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SAID DAMAGE.
- You (the “indemnifying party”) agree to defend, indemnify, and hold Global Polling, its affiliates, and their officers, directors, employees, and agents (the “indemnified party”) harmless from any damages, losses, fines, costs, sanctions, and expenses (including attorneys fees or “losses”) relating to claims, demainds, suites, proceedings, investigations, or actions (“claims”) made against the indemnified party by a third party, including an authority or government agency, for claims relating to (i) the processing of personal data according to your instructions; (ii) a data breach caused by you or your agent; or (iii) a violation on your part concerning personal data regulations or your representations, warranties, or covenants under this addendum.
- The indemnified party will notify you promptly in writing of any such claims. In that instance, the indemnifying party will defend against or settle the suit or claim. The indemnified party will, at your request and expense, cooperate with the indemnifying party and provide such information and assistance as is required by the claim. The indemnified party has the right, at your expense, to select counsel and take over the defense against said claim. As per this agreement’s indemnity addendum, you shall pay fees and costs and any damages awarded against the indemnified party.
To contact Global Polling in relation to our Terms of Service.
PO Box 22
Mission Beach, QLD 4852 AUSTRALIA