Contextual

Terms of Service

Terms of Service

Updated: 24 January 2022

The Platform is made available by Dealsta PTY LTD ABN 161 497 13342, a division of StreetHawk Inc (“Streethawk”,  “Contextual”, “Contextual”, “us”, “we” or “Company”) to your organisation (“you”).

The Contextual and Contextual (“Platform”) provides Mobile AND Web App owners and their teams 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 Platform.

  • “App Owners”: Platform Dashboard users, developers, customers or other people who communicate with us or integrate with the Platform.
  • “End users”: of an App (created and controlled by an App Owner or their delegate) that uses the Platform that may have questions.
  • “Plan”: the recurring subscription that App Owners pay to access the Platform and its services.

These TOS apply to the Platform for App Owners (“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 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 Platform, YOU AGREE TO BE BOUND BY THESE TOS. If you are using the 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 Platform.

1. ACCESS

The Platform includes access to:

(i) the Platform documentation, sample code and any fixes, updates and upgrades provided;

(ii) the Platform Application Programming Interface (“Contextual API”,  “Contextual API”), the Libraries and SDKs necessary for you to install and deploy in order to make use of Platform functionality;

(iii) the 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 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 Plan to which you have subscribed.

We hereby grant you a non-exclusive, non-transferable, limited-term license to (ii) make calls to the Platform API and/or (i) install, use and embed the Libraries (in executable form only) into your application, each for the purposes of using the functionality offered by the Platform in respect of the Platform Plan to which you have subscribed.

Access to the 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 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. FEES

3.1 Whether fees are payable by you will depend on the 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 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 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 Platform and payment at any time.

4. DATA

The Platform collect data regarding the behaviour and usage patterns of users of your application.
Please see the “Privacy Policy” for comprehensive information on the data collected by the Platform. The user information which is collected by the Platform is defined as “App Data”. Other than required device information such as make, model, resolution etc, you are in control of the data to be collected and analysed via the Platform. Unless we have agreed in writing otherwise, we do not wish to receive or be given access to any user’s personally identifiable information and you should ensure that any data made available to us via your app or otherwise does not contain any personally identifiable information.

You are responsible for obtaining all the appropriate permissions from your users to allow us (and our third party service providers) to collect, store and use the App Data as outlined in these TOS. You agree that you have and will abide by an appropriate privacy policy relating to the collection and use of information from your users. You must post a privacy policy and that policy must provide notice of your and our use of App Data. You will comply with all applicable laws related to the provision of, access to and information collected by you related to your users, including, but not limited to, laws and regulations related to information to be collected from minors. You are also responsible for ensuring that your use of the Platform complies with any service terms of your third party service- and platform-providers (such as Facebook, Apple, Google Play etc.).

The 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 we 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. We may list the name/logo of your company or your App as a customer either on our website or in communications.

You must provide appropriate and sufficiently prominent notice to, and obtain the appropriate consent from users of your Apps regarding the collection, use and disclosure of such user’s mobile analytics information, including, at a minimum, through the privacy policy of your App.

5. SUPPORT SERVICES

Support queries may be logged via email to support[at]contextu.al or directly via the Platform.

6. YOUR RESPONSIBILITIES

6.1 You may not use the Platform 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 Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the 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 Platform or portions thereof;
(b) disclose or allow access to the Platform API to any third party except to contractors who are assisting you in the development, enhancement or maintenance of your app;
(c) distribute the Platform Libraries or SDKs in any form other than executable, object code form, complied into your app or minified Javascript as provided by our CDN;
(d) disclose the results of any quality, benchmark or performance testing of the Platform to any third party without our prior written approval;
(e) work around any technical limitations in the Platform;
(f) allow access to, publicly perform or display the 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 Platform or this agreement to any third party.

7. OWNERSHIP; FEEDBACK

The 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 Platform. You agree that we may use feedback that you provide to us in any way, including in future enhancements and modifications to the 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.

8. NON-DISCLOSURE

The Platform, including the ideas and concepts contained therein and the documentation accompanying the Platform, constitutes confidential information of ours. You shall not disclose the details of the 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 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;

9. TERM

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 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 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 Platform shall terminate automatically and immediately.

Late Payment

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 Platform without liability to you.

If you are in breach of any of the terms of this Agreement, we may suspend access to the Platform in addition to any other rights we have in law.

Effects of Termination

Upon termination, you will stop using the Platform (and you acknowledge that we may terminate your account). On termination you will remove the Libraries from your app and cease all use of the Platform Libraries, SDKs and API. Unless this agreement has been terminated for your breach, insolvency or non-payment of fees, you need not remove the Libraries from your app immediately but must do so within a reasonable period.

You acknowledge that, on termination of the Platform, your App users may not have access to some features that depend on the Platform API.

Unless your access to the 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.

10. WARRANTIES

We warrant that the Platform will operate substantially and materially in accordance with its specifications and documentation on the Company’s 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 Platform will be uninterrupted or that the 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 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 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 Platform, in no event will our liability exceed the fees paid by you in respect of the 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 Platform. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.

13. GENERAL

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 contracts@contextu.al.