Terms

1. Introduction. By using, or registering as a user of Polinode, you agree to be bound by the following terms and conditions (“Agreement”) and accept our Privacy Policy. Polinode reserves the right to update and change this Agreement without notice. You can review the most current version of the Agreement at: www.polinode.com/terms. Any new feature added to Polinode's web application and online services shall also be subject to this Agreement and Privacy Policy. Continued use of the application and/or services after any such change shall constitute your consent to such changes.

2. Parties. The terms “Polinode”, “us”, “we” and “our” all refer to the Australian company Polinode Pty Ltd (ABN: 73 168 704 096). The terms “client”, “clients” and “you” refer to you as a client or user of our services.

‍3. General Account Terms. When registering you must provide all information required, including your full name and valid email address and this information must be accurate. You are solely accountable for the security of your account and password. Polinode reserves the right to refuse service to anyone for any reason at any time.

‍4. Service.

4.1. Definition. Polinode offers a web application (together with any support or consulting, the “Service”) to collect data on, visualize and analyze networks.

‍4.2. Competitor. You may not access the Service if you are or intend to become our direct competitor, except with our prior written consent.

‍4.3. Reservation of Rights. Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our/their right, title and interest in and to the Service, including all of our/their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.

‍4.4. Access to Service. Subject to the terms and conditions of this Agreement, Polinode grants you a non-exclusive right to access and use the Service in accordance with this Agreement. Polinode also grants a non-exclusive right for you to allow others to access the Service in order to enter survey data into surveys that are being run by you.

‍4.5. Payments and Refunds. The Service is made available on both a free and a pay-as-you-go basis. Polinode provides access to the Service free of charge for both publicaly available networks and for surveys with a limited number of respondents. If you have elected to use Polinode on a pay-as-you-go basis, you will be billed each period for the plan(s) that you select. You may delete private networks, remove respondents, remove users and/or upgrade or downgrade your plan(s) at any time through your account at www.polinode.com and any such change will be reflected in your invoice for the following period, including any pro rata adjustments. Polinode, however, does not provide refunds or credits and all data associated with deleted networks, surveys and/or respondents will be removed immediately and cannot be recovered.

‍4.6. Non-Commercial Use. Polinode provides differential pricing for non-commercial use of the Service at its complete discretion. If you are using the Service as a non-commercial user but use the Service to generate revenue or use the Service on behalf of an organization that seeks to generate a profit or are such an organization, then the non-commerical pricing does not apply and you will be required to pay the standard commercial price including for any historical period where the Service has been used for commercial purposes.

‍4.7. Your Data. “Your Data” means any data, content, code, video, images or other materials of any type that you, any user invited to the Service directly or indirectly by you, or any respondent to a survey to which you have access create by uploading, submiting or otherwise transmiting to or through the Service. You will retain all right, title and interest in and to Your Data in the form provided to Polinode. Subject to the terms of this Agreement, you hereby grant to Polinode a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the Service to you and (b) for any part of the Service that enables you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you direct or enable through the Service. Polinode may also access your account in order to respond to your support requests.

‍4.8. Security. Polinode implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Service necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.

‍5. Responsibility for Your Data.

5.1. General. You must ensure that your use of the Service and all Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Polinode and to grant the rights granted to Polinode in this Agreement and (ii) Your Data and its transfer to and use by Polinode as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Polinode assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

‍5.2. Sensitive Data. You will not submit to the Service (or use the Service to collect): (i) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (ii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) and (ii), collectively, “Sensitive Data”). You also acknowledge that Polinode is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Polinode has no liability under this Agreement for Sensitive Data.

‍5.3. Indemnity for Your Data. You will defend, indemnify and hold harmless Polinode from and against any loss, cost, liability or damage, including attorneys’ fees, for which Polinode becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Service in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Polinode at your expense.

‍5.4. Deletion after a Period of Inactivity. We may remove or delete Your Data if your account has been inactive for six months or more.

‍6. Financial Terms.

6.1. Payment. You agree to pay all fees in accordance with this Agreement and pricing published at www.polinode.com. Unless otherwise agreed, you will pay all amounts in U.S. dollars. All amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of the Service beyond the current period that the payment relates to or any product upgrades or feature enhancements. You agree that we may bill your credit card for renewals, additional respondents, and unpaid fees, as applicable. Your account may be suspended or terminated for non-payment.

6.2. Modification to the Service and Prices. Polinode reserves the right at any time to change or terminate the Service – or any part of the Service. Prices for the Service are subject to change with 7 days notice – notice will be satisfied either by email communication or by a change to the advertised prices at www.polinode.com. Polinode shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

‍6.3. Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Polinode, you must pay to Polinode the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Polinode any such exemption information, and Polinode will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

‍7. Restrictions. You must not: (a) use the Service for sending unsolicited email, you must have permission from any survey recipients (either from the recipient themselves or an organisation representing them) to send them the survey and any subsequent communication, (b) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Service to a third party, (c) interfere with or otherwise circumvent mechanisms in the Service intended to limit your use, (d) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any products, except as permitted by law, (e) remove or obscure any proprietary or other notices contained in the Service, (f) publicly disseminate information regarding the performance of the Service, (g) collect personally identifiable information for purposes other than those communicated to the data subject, or (h) use data in a manner that is incompatible or inconsistent with a purpose previously communicated to a data subject.

‍8. Confidentiality.

8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Service; and Confidential Information of each party includes the terms and conditions of this Agreement (including any non-standard pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

‍8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of the Service.

‍8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

‍9. Term and Termination. This Agreement is in effect for as long as you have a valid account at www.polinode.com, unless sooner terminated as permitted in this Agreement. You are responsible for cancelling your account, should you wish to do so. The account owner can cancel the account at any time by clicking on the Account Settings link in the system header after logging in, then clicking the Delete Account link. There are no other means of cancelling your account. All of your content will be deleted from the Service immediately upon cancellation. This information cannot be recovered once your account is cancelled. Either party may terminate this Agreement if the other party materially breaches any of the terms of this Agreement. Either party may also terminate the Agreement if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. Polinode may terminate this Agreement with 30 days notice to you. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you will no longer have any right to use or access the Service, or any information or materials that we make available to you under this Agreement, including Polinode Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 5.3 (Indemnity for Your Data), 6 (Financial Terms), 7 (Restrictions), 8 (Confidentiality), 9 (Term and Termination), 10.2 (Warranty Disclaimer), 11 (Limitation of Liability), 13 (Dispute Resolution), and 14 (General).

‍10. Warranty and Disclaimer.

10.1. Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and any request for products or services under it is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

‍10.2. Warranty Disclaimer. ALL PRODUCTS ARE PROVIDED “AS IS,” AND POLINODE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. POLINODE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER POLINODE NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

‍11. Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF ANY PRODUCTS OR WHICH WE DO NOT CHARGE SHALL BE US$20. THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 7 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 11 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

‍12. Publicity Rights. We may identify you as a Polinode customer in our promotional materials. You may request that we stop doing so by submitting an email to info@polinode.com at any time. Please note that it may take us up to 30 days to process your request.

‍13. Dispute Resolution.

13.1. Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed between the parties: Sydney (Australia), Amsterdam (Netherlands) or San Francisco, CA (USA). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in Sydney (Australia). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

‍13.2. Governing Law. The Agreement is governed by the laws of New South Wales (Australia), and both parties agree to submit to the exclusive jurisdiction of the courts in New South Wales (Australia).

‍14. General. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by email at info@polinode.com. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. This Agreement is the entire agreement between you and Polinode relating to the Service and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.