Respondent/User Terms & Conditions
Welcome to YomStar.
In these Respondent Terms & Conditions (T&Cs), “we” or “us” means YomStar Australia Pty Ltd (ACN 600 371 202), YomStar Inc. (FN 6013590), YomStar Holdings Pty Ltd (ACN 163 409 961) (as applicable) and all associated entities, and “you” means a person who has decided to respond to an Engagement.
At Yomstar, we know how important your opinion is to businesses. Through our websites (including www.yomconnect.com) (Site), we provide web-based software and tools to enable our clients to create cutting-edge Engagements which are designed so that your feedback can be provided quickly and easily. You may even be rewarded for your participation in an Engagement.
If you do not agree to these T&Cs, then you must not access, interact with or respond to an Engagement.
Part 9 sets out the definitions that apply to these T&Cs.
- Your relationship with us and the Engagement Creator
Engagement Creator: When you access, interact with or respond to an Engagement, you acknowledge and agree that the Engagement and the fulfilment of any Reward or entry into a Competition is offered by and is the sole responsibility of the Engagement Creator.
Our relationship with the Engagement Creator: Our relationship with the Engagement Creator is governed by our agreement with them, which includes the Yomstar Terms and Conditions (Yomstar T&Cs). We recommend that you review the Yomstar T&Cs to gain a better understanding of our relationship with the Engagement Creator. If you are concerned that an Engagement Creator may have breached the Yomstar T&Cs, or if you have any concerns generally about an Engagement Creator’s conduct, please contact us through our Support Page. If we consider it appropriate, we may decide to take further action.
Our Role: Depending on our agreement with the Engagement Creator, our role may involve:
(a) designing the Engagement;
(b) hosting the Engagement;
(c) distributing the Engagement;
(d) providing access to the Engagement;
(e) administrative tasks related to the Engagement;
(f) receiving Data;
(g) hosting Data; and
(h) making Data available to the Engagement Creator.
Our relationship with you: The extent of our relationship with you is to distribute the Engagement to you, host the Engagement and collect and host your Data on behalf of the Engagement Creator. Depending on our agreement with the Engagement Creator, we may also be responsible for distributing Rewards or organising Competitions on their behalf. You acknowledge and agree that we have no liability or responsibility to you outside of this limited relationship.
Information: If you require any information or have any questions in relation to our role and responsibilities, please feel free to contact us through our Support Page. If you require any information or have any questions about the a Reward or entry into a Competition that is being offered, please contact the Engagement Creator.
Our Engagements: From time to time, we may offer our own Engagements. In that case, we will be the Engagement Creator of that Engagement, and will be subject to the rights and obligations of the Engagement Creator as outlined in these T&Cs.
- Your Conduct and OBLIGATIONS
Age: You are not eligible to and must not access, interact with or complete any Engagement unless you are over the age of majority in your country of residence.
Compliance: You agree at all times to only access, interact with or respond to an Engagement in accordance with:
(a) these T&Cs;
(b) any applicable laws and regulatory requirements (including, without limitation, the Privacy Laws, any applicable criminal laws, and any applicable laws and regulations relating to intellectual property, defamation, discrimination, vilification and obscenity); and
(c) any applicable third party terms and conditions (including those of the Engagement Creator), either forming part of the Engagement, or as otherwise relating to your access to or interaction with the Engagement.
Personal information: You warrant that any personal information provided to us is your own, or that you otherwise have the necessary consent to provide such information to us.
Participation: Unless otherwise provided for in the Engagement Creator’s terms and conditions (if applicable), you may only participate and submit responses to an Engagement once.
Conduct: In accessing, interacting with or responding to an Engagement, you must not:
(a) act unlawfully, fraudulently, dishonestly, inappropriately, mislead or deceive, or engage in improper behaviour of any kind;
(b) harass, abuse or harm any person;
(c) send unwelcome or unauthorised communications;
(d) infringe any rights or invade or violate the privacy of another person;
(e) impersonate another person, hide your identity or falsely represent an association with another person;
(f) submit any Data which is false, inaccurate, misleading or deceptive, unlawful, defamatory, discriminatory, vilifying, pornographic or is otherwise inappropriate, indecent, inaccurate or objectionable, or for which you do not have the necessary rights or permission to use;
(g) interfere with, gain unauthorised access to, or disrupt the availability of the the Engagement or any of our software (including but not limited to any servers or networks connected with our Site); or
(h) upload or other transfer any material containing a bug, virus, trojan or similar malicious program or software to the Site.
Failure to comply: If you fail to comply with this Part 2, in additional to any other rights that we have under these T&Cs, we may decide to delete some or all of your Data, or terminate your access to any or a particular Engagement.
- Your licence
Conduct: Provided you have agreed to and comply with these T&Cs, we grant you a limited, non-exclusive, non-transferable licence to access and complete the Engagement (including any software or tool provided by us to allow you to access and use the Engagement), and to submit your responses only.
Purpose: This licence is granted to you for the purpose of responding to the Engagement in accordance with these T&Cs only. You must not use the Engagement (or any software provided by us) for any other purpose.
- intellectual property
Engagement: You acknowledge that any and all Intellectual Property in the Engagement (and any related software) remains the property of us and/or the Engagement Creator. Aside from the permitted use under the licence granted in Part 3, you acquire no right, title or interest in or to Engagement (or any related software) by virtue of these T&Cs. You must not take any action, or assist any person to take any action that may jeopardise, limit, challenge or interfere with our ownership of or rights in the Engagement or any related software.
Your Data: Upon providing your Data to us, you irrevocably assign and transfer all Intellectual Property in and to your Data to us. You will not take any action against us in relation to any Intellectual Property rights existing in or relating to your Data once it has been provided to us, including any future use of such rights.
Waiver of Moral Rights: You agree not to enforce your Moral Rights (if any) in any responses provided to us, and you irrevocably, unconditionally and genuinely consent to us or the Engagement Creator using any Intellectual Property in any way which would, but for this waiver, constitute an infringement of any of your Moral Rights.
- Privacy and your data
Use of Data: The Engagement Creator may access, download, export and use your Data at any time. You acknowledge and agree that:
(i) we have no responsibility for or control over the Engagement Creator’s access to, or use of any Data;
(j) we may use, exploit, copy, modify or disclose the Data (excluding personal information) for any purpose; and
(k) the Engagement Creator may use, exploit, copy, modify or disclose the Data (excluding personal information) for any purpose.
De-identified Data: You acknowledge and agree that we may use, copy, exploit, modify, disclose or licence data (which may include your Data) in an aggregate, de-identified form for any purpose. You acknowledge our rights in de-identified data and agree not to take any steps or do any act that would interfere with such rights.
Access to Engagements: We are not able to guarantee access to the Site or any particular Engagement at all times. We will try to provide notice of any maintenance works but reserve our right to modify, suspend or discontinue access to the Engagements and access to the Site for any reason and at any time. You acknowledge and agree that we will not be liable in relation to any periods of inaccessibility.
Use of Data: We are not liable for any use of your Data by the Engagement Creator.
Content of Engagement: You acknowledge and agree that we are not responsible or liable for the content of any Engagements, including any representations or promises made, or for any content that is offensive, illegal, inappropriate or results in any harm or Loss to you.
Reward: You acknowledge and agree that we are not responsible or liable for the fulfillment of any Reward (including where the promise of a Reward made by the Engagement Creator is misleading or deceptive).
No Warranties: You acknowledge and agree that our Site and any Engagement may contain inaccuracies, errors, bugs or viruses. To the extent permitted by law, we do not warrant:
(a) the accuracy, reliability or completeness of our Sites or any Engagement or that they will be error, bug, virus free;
(b) that an Engagement will operate in combination with other software or any particular equipment, or other system, or will provide any function other than those as set out on our Site;
(c) that any content, Reward or Trade Promotion offered or provided to you by the Engagement Creator either through our software or otherwise is accurate and correct, fit for purpose or complies with any particular law or regulation; or
(d) the accuracy, reliability or completeness of any information provided by us.
Limitation of implied warranties: All representations, warranties, terms and conditions which would otherwise be implied or imposed in these T&Cs are excluded to the maximum extent permissible by law (including, where permitted, any warranty with regard to merchantability, durability, fitness for purpose, or non-infringement of third party rights).
Limitation of Liability: To the maximum extent permitted by law:
(a) neither we nor our affiliates or our respective officers, employees, consultants or agents will be liable to you for any indirect, special or punitive, exemplary or consequential loss or damage, or for any loss of profit or business opportunity, any business interruption or loss of business information and data (even if we have been advised of possible damage) arising out of or relating to these T&Cs, your use or not being able to use the Site or a particular Engagement, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise; and
(b) your sole remedy for any breach of these T&Cs by us is limited to termination.
Limitation of Prescribed Terms: Where by law we are unable to exclude any guarantee, warranty, representation, condition or other term or to limit our liability as set out above, but are entitled to limit it, then our liability to you under such terms is limited, at our discretion, to providing access to the Engagement again or paying the cost of having the Engagement supplied again or, if this is not permitted by law, then otherwise to the maximum extent permitted by applicable law.
Indemnity from you: You agree to hold harmless, defend, indemnify and release us and our affiliates and our respective officers, employees, consultants and agents from and against all claims, actions, proceedings and demands (including those brought by third parties), Loss and any other costs (including those incurred in satisfying, defending or settling such claim, proceedings or demand) of any nature arising out of or in connection with:
(a) any breach of these T&Cs;
(b) any breach by you of any applicable laws, regulations or third party terms and conditions;
(c) any access to or use of our Site or an Engagement and any Data originating from you or which relates to your use of the Site or an Engagement; or
(d) anything that you provide to us under these T&Cs;
Termination for convenience: We may terminate this agreement at any time immediately upon providing notice to you.
Termination for breach: If you breach any term or warranty of these T&Cs we may, in our sole discretion, decide to terminate this agreement.
Consequences of termination: In the event that this agreement is terminated for any reason, you will no longer be able to access, interact with or respond to any or all of the Engagements.
Ban: If we consider that your breach is sufficiently serious, or if we detect that you have attempted to respond to an Engagement more than the allowed number of times, we may ban you from participating in any or all future Engagements, and we may take appropriate steps to effect this (including but not limited to banning your IP address from accessing the Site and similar actions).
Assignment: You may not assign or transfer your rights or obligations under these T&Cs unless with our prior written consent (which we may grant or withhold at our sole discretion).
Notices: All notices provided by you under these T&Cs must be provided to the email identified on the Support Page. All notices provided by us will be emailed to you at the email address that you provide to us when you respond to an Engagement, or posted on our Site.
Severance: If any provision of these T&Cs is held invalid, unenforceable or illegal for any reason, these T&Cs will otherwise remain in full force apart from such provision which shall be deemed deleted.
No Waiver: Any delay or failure by us to enforce our rights under these T&Cs is not to be construed as a waiver of those rights.
Governing Law: These T&Cs are governed by the laws of Delaware (USA) and you submit to non-exclusive jurisdiction of the courts of Delaware, United States of America.
Competition means any lottery or game of chance conducted with a view to promoting goods or services or any other form of competition where the respondent is not guaranteed a prize, which is offered to you by the Engagement Creator.
Data means any information provided to us as a result of your access or response to, or interaction with an Engagement or our Site.
Engagement means a survey or any other promotion created by the Engagement Creator using our web-based software and tools.
Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, future copyright, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information be kept confidential, and including the right to register such rights anywhere in the world, but does not include Moral Rights that are not transferable.
Loss means any direct or indirect cost, expense, debt, obligation, compensation, charge or liability of any kind (including loss of profits, damage to goodwill and loss of business opportunity) whether or not arising from a third party claim.
Moral Rights has the meaning given to that term in the relevant State or Federal legislation.
Privacy Law means any applicable privacy or data protection law (including those in any jurisdiction where the Engagement or Site is provided, used or accessed) and all guidelines issued by any government regulator.
Reward means any offer, discount, coupon or other benefit offered by an Engagement Creator for completing an Engagement or responding to a promotion.
Terms & Conditions Specific To Our Australian Respondents
Australian Governing Law: In circumstances where Data is collected through an Engagement from within Australia, these T&Cs are governed by the laws of the State of Queensland, Australia.