Account
1. Eligibility
In order to use the Service, you must:
- be at least eighteen (18) years old and able to enter into contracts;
- complete the registration process;
- agree to these Terms; and
- provide true, complete, and up-to-date contact and billing information
By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.
Tracker Group may refuse service, close accounts of any users, and change eligibility requirements at any time
2. Terms
Function Tracker offers a range of subscription plans to the Service (each, a “Plan”). You will select your Plan as part of your registration for the Service, which may begin with a 30-day Free Trial, or by an account created by us. At the expiry of the 30-day Free Trial you will be provided the opportunity to apply for an account valid for a full Term. Each subscription period for a Plan will be for either one (1) or twelve (12) months (“Term“). You may choose to be billed for the Plan annually or monthly. Regardless of your billing cycle, you are responsible for subscription fees for the entire Term.
Your Term begins when you sign up for Function Tracker and continues for each renewed Term. By creating an account via the Website, or by signing in for the first time if the account was created for you, this means that you’ve officially “signed” the Terms. If you sign up for Function Tracker on behalf of an organisation or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
When you sign up for the Service and agree to these Terms, the Agreement between you and Function Tracker is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Function Tracker account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first.
Our charges for annual plans are posted on our Website and may be changed from time to time (“Account Fee“). If an agreement is in place to pay monthly, and if any part of a month is included in the Term, then payment is due for the full month.
3. Closing Your Account
You or Tracker Group may terminate the Agreement at any time and for any reason by terminating your Function Tracker account or giving 30 days notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your monthly prepayment. We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, like a breach or any violation of the Agreement. If your account is inactive for 24 or more months, we may terminate the account. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it.
4. Changes
We may change any of the Terms by posting revised Terms of Use on our Website and/or by notifying you of the new Terms by sending an email to the last email address you gave us or displaying prominent notice within the Service. Unless you terminate your account within 10 days, the new Terms will be effective immediately and apply to any continued or new use of the Service. We may change the Website, the Service, or any features of the Service at any time, and we may discontinue the Website, the Service, or any features of the Service at any time.
5. Account and Password
You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Function Tracker is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorised that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords that are caused by or result from your negligence. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.
6. Account Disputes
We don’t know the inner workings of your organisation or the nature of your personal relationships, and we don’t arbitrate disputes over who owns an account. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on the contact information listed for that account, and, if that information is in dispute, by evidence provided by you from your government regulatory body (for example, in Australia, ASIC or Fair Trading in your state) regarding your listed public officer.
Rights
7. Proprietary Rights Owned by Us
You must respect our proprietary rights in the Website and the software used to provide the Service (proprietary rights include, but aren’t limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property).
You must obtain express written permission from us if you wish to reproduce any aspect of the Website or other Proprietary Rights owned by us.
8. Proprietary Rights Owned by You
You represent and warrant that you either own or have permission to use all of the material, content, data, and information (including your personal information and the personal information of others) you submit to Function Tracker in the course of using the Service (“Content”). You retain ownership of the Content that you upload to the Service. We may use or disclose your Content (including any personal information therein) only as described in these Terms, our Privacy Policy.
All data added by you (or your users) into Function Tracker including customer data, financial information, and all other data, belongs to you. In the unhappy event that you leave our Service, we may grant you access for 30 days to remove your data. We are not responsible for providing you with the data exports – it is your responsibility to go through the Service and export your data.
9. Privacy Policy
Your privacy is important to us. Please read our Privacy Policy for information regarding how we collect, use, and disclose your Content and personal information and protect your privacy when you use the Service.
Rules and Abuse
10. General Rules
You promise to follow these rules:
You won’t violate our Acceptable Use Policy, which is part of this Agreement.
You won’t upload any content which is illegal, in breach of someone else’s copyright, or content which may bring Function Tracker into disrepute.
You won’t attempt to reverse engineer, hack into or compromise any aspect of Function Tracker and Services, or attempt to access data or account information of any other Client of Function Tracker.
Further, you will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
If you violate any of these rules, then we may suspend or terminate your account.
11. Compliance with Laws
You represent and warrant that your use of Function Tracker will comply with all applicable laws and regulations. You are responsible for determining whether our Services are suitable for you to use in light of any regulations like Australian Privacy Principles, EU Data Privacy Laws, or other laws. If you are subject to regulations (like Australian Privacy Principles) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements.
If you are an EEA Member, you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Privacy Laws, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.
You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 11.
12. Upgrades
In the interests of our Clients, we regularly perform Service upgrades. Occasionally, this may impact the Service for brief periods in which upgrades are being implemented. While we do our best to perform these at times that will not impact Clients, sometimes this is unavoidable.
In accepting these Terms, you acknowledge, understand, and agree that we will not be responsible for downtime caused by upgrades, and that we are working hard to ensure the Service has an impeccable uptime.
13. Data Security, Integrity and Loss
Whatever the cause of any downtime, access issues or data loss, your only recourse is to discontinue using our services. There is No Compensation.
Regarding security
We will implement industry standard and commercially reasonable effects to establish and maintain security safeguards; and
You will follow reasonable security practices to ensure the safety of your account information.
Regarding deletion
Both we and our upstream provider conduct daily backups of our data.
We will not be responsible if your data is deleted by you or a user of your account, either accidentally or intentionally. We may be able to restore a backup, which will incur a cost to be paid by you. We take no responsibility if the data is outside our backup schedule.
We are not responsible if your data is lost by way of something out of our control, or by a failure of the system. We will do our best to restore the data, but will not be held liable.
Liability
14. Limitation of Liability
To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Service, including any downloads from the Website. We and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages. In any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.
In addition, for the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of our Acceptable Use Policy, regardless of whether we terminate or suspend your account due to such violation.
We have no liability arising from your use of our services for any loss of revenue or profit, loss of goodwill, loss of customers, loss of capital, loss of anticipated savings, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
15. No Warranties
To the maximum extent permitted by law, we provide the Website and the Service as-is. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Website and/or Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.
16. Indemnity
You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (a) your Content, (b) your use of the Service, (c) your violation of any laws or regulations, (d) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (e) any misrepresentations made by you, or (f) a breach of any representations or warranties you’ve made to us.
17. Legal Fees and Expenses
If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover all reasonable legal fees, expenses, and any damages or other relief we may be awarded.
18. Equitable Relief
If you violate these Terms then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
19. Subpoena Fees
If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs. These fees may include legal and employee time spent retrieving the records, preparing documents, and participating in legal proceedings.
20. Disclaimers
We and our Team aren’t responsible for the behaviour of any third parties, linked websites, or other Members.
Fine Print
21. Assignments
You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
22. Severability
If it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.
22. Choice of Law
The laws of the State of New South Wales, Australia, except for conflict of laws rules, will apply to any dispute related to these Terms or the Service. Any dispute related to the Terms, the Privacy Policy, or the Service itself will be decided by the state and federal courts in New South Wales, Australia, and each party will be subject to the jurisdiction of those courts.
23. Force Majeure
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service or upstream providers.
24. Survivability
Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Survivability, Severability, and Entire Agreement.
26. Interpretation
The conversional-style language (and section headings) used in these Terms is provided only to make this agreement easier to read and understand and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
27. Amendments and Waiver
Amendments or changes to these Terms won’t be effective until we post revised Terms on the Website. That aside, additional terms may apply to certain features of the Service (the “Additional Terms”). The Additional Terms will be considered incorporated into these Terms when you activate the feature. Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will control. If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
28. No Changes in Terms at Request of Member
We are a cloud-based service, with clients across Australia, New Zealand and the rest of the World. We cannot change these Terms for any one Client or group. If we did that, keeping up with the changes would be a logistical nightmare. So no changes, no exceptions.
29. Further Actions
You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
30. Notification of Security Breach
In the event of a security breach that may affect you or anyone in your member database, we’ll notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to anyone in your database, you’ll promptly do it.
31. Notices
Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Website.