Cubery Pty Ltd (“Cubery”) is a market research company that conducts research on behalf of Clients. Cubery uses third-party fieldwork suppliers to collect data which they then analyse in order to provide insights to Clients. Cubery offers two types of research to Clients:
a) Automated self-service research which is available through the Cubery website at https://cubery.com (“Automated Services”) and
b) Custom designed and built research to Client specifications (“Custom Projects”).
2.1 For Automated Services, these Terms & Conditions, along with any other applicable rules, policies and information outlined on the Cubery website, constitute the entire Contract (the “Contract”) between you (the “Client”) and Cubery for the use of Cubery Services accessible on the website https://cubery.com (the “Services”). This Contract will automatically become effective upon the Client first registering to use Cubery Services as a customer and shall continue until it is terminated in accordance with this Contract.
2.2 For Custom Projects, these Terms & Conditions, together with the Cubery Project Agreement (the “Agreement”), constitute the entire Contract (the “Contract”) between you (the “Client”) and Cubery.
2.3 This Contract shall supersede and override all previous communications, either oral or written, between the Client and Cubery.
2.4 No agreement or understanding varying or extending this Contract shall be binding upon the Client or Cubery unless arising out of the specific provisions of this Contract.
2.5 If, for any reason, there is inconsistency between this Contract and any other agreement, this Contract shall prevail.
2.6 Both the Client and Cubery warrant that they have all necessary authority to enter into and perform their obligations under this Contract, without the consent of any third party or breach of any contract or agreement with any third party.
3. Client Registration and Account (Automated Services only)
For the purpose of using the Cubery Services available at https://cubery.com, the Client will first need to register themselves on the website and create an individual account including a login and a password. The Client confirms that all information they have provided in their account is current, complete and accurate. The Client is solely responsible for the use of their login and password. The Client agrees to keep their login information and password private and to notify Cubery immediately if they become aware of any unauthorised account activity. While the Client may share their login with whoever they wish, they acknowledge that they are responsible for their account and all activities occurring in connection with the use of their account, regardless of whether they have authorised such activities.
4. Terms of Payment
4.1 For Automated Services, the cost of the Services is the price which is quoted on the Cubery website (the “Fee”). Unless otherwise agreed, the Services must be purchased and the Fee paid before any work commences. Where the Client pays for the Services by Credit Card, the Client confirms that the Credit Card information provided is correct, and that they will immediately notify Cubery of any changes. The Client acknowledges and agrees that if their Credit Card payment cannot be processed for any reason, Cubery may suspend or cancel their account, and suspend or cancel any pending Services. Cubery may change its Fees at any time and in its sole discretion, provided that any change becomes effective at the completion of any Services which the Client has already purchased. The Cubery website will be updated immediately to reflect any changes in Fees.
4.2 Custom Projects with a total price outlined in the Agreement (the “Fee”) totaling $20,000 or less, will be invoiced in total on commissioning of the project. Custom Projects with a Fee in excess of $20,000, will be invoiced in two installments:
a) 50% on commissioning of the work and
b) 50% on the delivery of the final reporting by Cubery.
4.3 For Custom Projects, the client will pay to Cubery all invoiced amounts within 30 days of the date of the invoice.
5. Fees & Goods and Services Tax
Unless otherwise stated, all Fees, including those listed on the Cubery website when purchasing the Services or as outlined in the Agreement, are listed in United States Dollars (USD). For Australian customers, GST is added on top of the Fee, being the goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999. Where the services are provided outside Australia, GST is inapplicable.
6.1 Both parties agree to treat as private and confidential and not to disclose or use other than as permitted under this Contract, unless otherwise agreed, anything that is confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information (“Confidential Information”). This includes all trade secrets, information, ideas forms, specifications, processes, statements, financial information, formulae and other matters relating to the business of the Client or Cubery, that is not in the public domain.
6.2 Cubery will not publicly disclose the Client’s identity or any Confidential Information to any third party without the Client’s prior consent, except to third parties for the purpose of delivering the Services purchased or in implementing the project outlined in the Agreement. In addition, this Contract allows for the disclosure of Confidential Information by Cubery in the following circumstances:
a) The disclosure is to a professional adviser for it to provide advice in relation to matters arising under or in connection with this Contract and the Client has consented to the disclosure of such information to the professional adviser;
b) The disclosure is required by applicable law or regulation; or
c) If the Confidential Information is already in the public domain at no fault of Cubery
6.3 For Custom Projects, the Client agrees to keep confidential the terms of the Agreement. If the Client becomes aware of a breach of this obligation, they will immediately notify Cubery.
6.4 Unless otherwise agreed, Cubery is permitted to display the Client’s corporate logo in its marketing materials.
6.5 All obligations of confidence set out in this Contract continue in full force and effect after the final reporting is provided to the Client.
7.1 For Automated Services, Cubery will use its reasonable endeavours to deliver the Services purchased as soon as is realistically possible. However, by using the Services, the Client acknowledges and agrees that Cubery does not guarantee incidence rates and survey completion times, and the incidence rates and subsequent timelines for completing the Services may vary drastically depending on the sample size and sample specifications.
7.2 For Custom Projects, Cubery will use its reasonable endeavours to complete the project in accordance with the timelines outlined in the Agreement. If for any reason Cubery foresees being unable to complete the project within the timelines outlined in the Agreement, they will inform the Client at least fourteen (14) days prior to the estimated completion date, or where the completion date is less than fourteen (14) days from the commencement date, then three (3) days.
7.3 The Client agrees that Cubery will bear no liability in the event that the project timelines are longer than specified when purchasing the Services or as outlined in the Agreement.
Upon completing the research project, Cubery will deliver the final reporting to the Client in the means prescribed when purchasing the Services or as outlined in the Agreement.
9.1 The Client may reject the final reporting provided by Cubery if the Client deems that it has not been completed in accordance with the information provided when purchasing the Services or as outlined in the Agreement.
9.2 If the final reporting is deemed to be incomplete by the Client, Cubery agrees to rectify it within fourteen (14) days. If the final reporting is not rectified or is still deemed to not be in accordance with the information provided when purchasing the Services or as outlined in the Agreement, the Client may cancel the Contract and Cubery will refund all Fees paid to it within three (3) Business Days and release the Client from all claims for payment in relation to works performed.
10. Cancellation, Postponement and Amendment
10.1 For Automated Services, once the Services have been configured and purchased, the Client will not be able to cancel, postpone or amend the Services.
10.2 For Custom Projects, if the Client wishes to cancel, postpone or amend the project outlined in the Agreement, the Client will provide Cubery with written notice within a reasonable timeframe, and will be required to indemnify Cubery for any costs or expenses incurred or required as a result of the cancellation, postponement or amendment. The Client will also be responsible for paying any obligations which Cubery owes to third parties.
11.1 For Automated Services, Cubery reserves the right to suspend or terminate the Client’s account or future use of the Services at any time, where it has reasonable ground to believe that the Client’s use of the Services does not comply with this Contract or any other applicable legislation or regulation.
11.2 For Automated Services, the Client may terminate this Contract at any time by emailing Cubery at [email protected]. Cubery will terminate this Contract immediately after receiving notice.
11.3 For Custom Projects, Cubery may terminate this Contract for a breach by the Client of this Contract by providing seven (7) days’ written notice of the breach to the Client.
a) During the seven (7) day notice period, the Client reserves the right to remedy the breach. If the Client remedies the breach which was the cause of the notice, this Contract will not be terminated at the lapse of the seven (7) days on the notice’s basis.
b) Upon providing notice of Cubery’s intent to terminate this Contract, Cubery agrees to continue providing the Services purchased or carrying out the project outlined in the Agreement until the cessation of the notice period unless otherwise instructed by the Client to cease work.
c) If Cubery provides notice of intent to terminate this Contract, the Client will pay for the work which has been done and at the time the Contract is terminated, will pay any outstanding works completed between the provision of the notice to terminate and the cessation of this Contract. If the Client elects to have Cubery cease work upon receiving notification of their intent to terminate, the Client will only be liable to pay amounts outstanding on work completed by Cubery to the date the request to cease work was issued by the Client. The Client will also be responsible for paying any obligations which Cubery owes to third parties.
11.4 For Custom Projects, the Client may terminate this Contract for any breach by providing seven (7) days’ written notice to Cubery. At the Client’s discretion, the Client may allow Cubery to remedy the breach within seven (7) days’ notice, or another time-frame as the Client elects, and in being satisfied with the remedy of the breach by Cubery, the Client will not terminate this Contract.
12. Data & Materials Destruction
Unless otherwise agreed, Cubery reserves the right to dispose of all data, advertising stimulus and any other materials supplied to Cubery in connection with delivering the Services purchased or in carrying out the project outlined in the Agreement, three (3) months after the delivery of final reporting to the Client.
13. Data Integrity
The Client understands that the numbers contained in research results are estimates derived from sample surveys and may therefore be impacted by statistical error. The Client also understands that the accuracy of the results is dependent on their use for the purposes described when purchasing the Services or as outlined in the Agreement and for use within a reasonable period of time. Cubery does not accept any responsibility for any loss, cost, damage, liability or expense arising directly or indirectly from the use of or reliance upon the final reporting provided and survey findings and analysis or any conclusions derived from such results or any actions taken by the Client or any third party in reliance on such results.
14. Governing Law & Jurisdiction
This Contract is governed by the laws of Victoria, Australia. In the event of any dispute arising out of or in relation to the Contract, the Client agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in Victoria, Australia.
15. Dispute Resolution & Mediation
15.1 If a dispute arises out of or relates to the terms of this Contract, both Cubery and the Client may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
15.2 A party to this Contract claiming a dispute (the “Dispute”) has arisen under the terms of this Contract, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the “Notice”).
15.3 On receipt of the Notice by the other party, the parties to this Contract (the “Parties”) must within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
15.4 If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Institute of Victoria, or his or her nominee and attend a mediation.
15.5 It is agreed that mediation will be held in Victoria, Australia.
15.6 The Parties are equally liable for the costs and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
15.7 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.
15.8 If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
15.9 In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
Any provision of this Contract which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Contract or affecting the validity or enforceability of such provisions in any other jurisdiction.
17. Waivers and Amendments
No modification, amendment or waiver of any provision of this Contract shall be effective unless in writing and signed by both the Client and Cubery.