1. Background: EverPerform Pty Ltd ACN 158 400 849 (Company) is the owner and operator of a particular software solution (Software) associated with particular processes and services (Services) offered by the Company to licensed organisations, to improve the performance of people in organisations. The Software and the Platform together comprise the Company's proprietary platform known as "EverPerform" (Platform). The Company can be contacted at Level 5, 158 City Road, Southbank VIC 3205 or via email at firstname.lastname@example.org.
4. Access to Service: In order to be entitled to access the Platform, an organisation with which you are affiliated (as an officer, employee, or in any other capacity) (Licensee) must enter into a Licence Agreement with the Company. You will only be invited to establish an Account if such a Licence Agreement has been entered into by the Company and the Licensee. Once such Licence Agreement has ended you will no longer be able to use your Account.
5. Legitimate Purposes Only: The Platform must be used for legitimate commercial business purposes only. You agree to use the Platform in a way which does not abuse it or its functionality, or otherwise restrict or affect the ability of others to access and use the Platform.
- (a) you cease to be affiliated with the Licensee;
- (b) the Licensee ceases to carry on business, or threaten to do so;
- (c) any step is taken to enter into any arrangement between the Licensee and its creditors, or such an arrangement is reasonably anticipated;
- (d) the Licensee ceases to be able to pay its bills as they become due, or threatens to do so;
- (e) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the Licensee's assets or business, or is reasonably anticipated; or
- (f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of the Licensee's assets or business, or is reasonably anticipated.
Restriction, suspension or termination is effective immediately unless the Company determines otherwise in its sole discretion and notifies you accordingly.
9. Accounts: Once a Licence Agreement has been entered into you will be invited to use the Platform. You will need an account (Account). If you receive and accept an invitation to use the Platform on any date up until 31 August 2015, the Company will issue you with a username and a password. If you receive and accept an invitation from 1 September 2015, you will be required to yourself select a unique username and choose a password for your Account. When creating your Account, you must provide complete and accurate information. You understand that the Platform is for use by professionals, and therefore agree that only your real name must be used in association with your Account activity. You are solely responsible for the activity that occurs on your Account, must ensure that no automated systems (including without limitation robots, spiders and offline readers) access the Platform or are otherwise used in connection with it, and must keep your Account password confidential and secure. You must not disclose your Account password to any third party. You must notify the Company immediately if you suspect any unauthorised use of your Account or access to your passwords. You are solely responsible for any and all use of your Account, and accordingly, you are liable to the Company for any losses sustained by it as a result of any unauthorised use of your Account. For the avoidance of doubt, you acknowledge and agree that the Company assumes no responsibility or liability for losses caused by unauthorised use of your Account.
10. Communications: By creating an Account, you consent to the Company providing you with marketing, promotional and advertising materials and other communications regarding offerings which the Company considers may be of interest to you.
13. Intellectual Property:
- (c) If the assignment described in clause 13(c) is ineffective in any way, then by submitting any User Generated Content through the Platform, you grant to the Company a non-exclusive, perpetual, irrevocable, worldwide, royalty-free licence to use, reproduce, modify, display, make available and distribute, and otherwise use, exploit and dispose of the User Generated Content you have submitted for any purpose and in any media (now known or developed in the future), including but not limited to the extent necessary for the Company to provide the Platform to you, the other users affiliated with the Licensee with whom you interact, and its other customers (Licence). You acknowledge that the Licence includes, without limitation, the right to exploit the User Generated Content online and in print and digital formats, and you irrevocably consent to the adaptation, reproduction, editing, re-titling, alteration, adding to and/or deleting from, rearrangement, transposing, translation and exploiting of the User Generated Content by the Company for any purpose and in any media (now known or developed in the future) including but not limited to the reproduction, publication, communication to the public and adaptation of the User Generated Content and any works derived therefrom. For the avoidance of doubt, you further acknowledge and agree that the Licence will continue in perpetuity notwithstanding the fact that User Generated Content you display, post, upload onto, publish or otherwise submit in your use of the Platform may be removed or deleted by you, in your sole discretion. Any rights (including intellectual property rights) in any adaptation, reproduction, editing, re-titling, alteration, adding to and/or deleting from, rearrangement, transposing, translation and exploiting of the User Generated Content by the Company will be owned solely and exclusively by the Company, and you acknowledge and agree that you have no claim or entitlement to any such rights or items.
- (d) You represent and warrant that the submission of the User Content through the Platform does not and will not infringe the rights, including without limitation, the intellectual property rights, of any person or other third party.
- (e) The Company may only use User Generated Content in a way that does not disclose the personal information of Four Eyes Consulting Pty Ltd’s clients (or their employees that use the Platform) to any third party, where personal information has the meaning given under applicable privacy laws.
14. Prohibited Content:
- (a) Use of the Platform for unlawful, illegal or otherwise prohibited activities, including but not limited to distribution of material which infringes the intellectual property rights of third parties, circulation of pornographic, defamatory, racist or otherwise objectionable material and collecting details of other Platform users by any means whatsoever for the purpose of sending unsolicited email or any other form of unauthorised solicitation, is prohibited. You are solely responsible for all User Content which you submit on or through the Platform, including for ensuring that all User Content that you submit on or through the Platform, and any material or information that you transmit to other users, complies with all applicable data protection and privacy laws.
- (a) submitted User Content which is illegal, offensive, prohibited or otherwise objectionable (Prohibited Content). Prohibited Content includes, but is not limited to, User Content that the Company in its sole discretion determines:
- (i) is offensive or promotes racism, bigotry, physical harm, harassment or discrimination of any kind against any person or group of people;
- (ii) is exploitative of people in a sexual or violent manner;
- (iii) contains nudity, excessive violence, or otherwise offensive subject matter;
- (iv) is pornographic in nature;
- (v) is liable to pose or create a privacy or security risk to any person;
- (vi) contains material which is obscene, threatening, false, misleading or defamatory or promotes illegal activities or conduct;
- (vii) constitutes or promotes an infringement of the intellectual property rights or any other rights of another party, or is likely to; or
- (viii) contains the work of another person which has been submitted without that person's consent; or
- (b) accessed or used the Platform for purposes which are unlawful, illegal or prohibited (Prohibited Activities). Prohibited Activities include, but are not limited to, activities conducted by you in or via the Platform that the Company in its sole discretion determines:
- (i) are criminal or otherwise illegal in nature, including but not limited to fraud, harassment, spamming and infringement of intellectual property rights;
- (ii) are commercial advertising and soliciting activities;
- (iii) involve the use of viruses, bots, worms or any other material intended to interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorised use of, or access to, a computer or computer network;
- (iv) are automated uses of the Platform;
- (v) involve impersonation of another user of the Platform or any other person or entity; or
- (c) The Company expressly reserves the right to take any action deemed necessary in respect of any Prohibited Content or Prohibited Activities or other illegal or unauthorised use of the Platform by any person, including removing Prohibited Content without notice, referring matters to appropriate authorities for further investigation (such as police) and appropriate legal action.
- (d) You must immediately notify the Company if you become aware or reasonably suspect that any User Content submitted by a Platform user is Prohibited Content, or that any Platform user is engaging in Prohibited Activities, or proposes to do so.
15. User Interactions: You are solely responsible for your interactions with other persons via the Platform generally. You acknowledge that the Company has no obligation to monitor your interaction with other users of the Platform, and has no responsibility or other involvement in any dispute that may arise between you and another Platform user.
- (a) The Company does not warrant that the Software, Services, Company Content or the Platform (or any part of it) will be error free, or that your use of the Software, Services, Company Content or the Platform will be uninterrupted, or that the Platform and Software will meet your requirements or those of the Licensee. Accordingly, you expressly acknowledge and agree that use of the Software, Services, Company Content and the Platform is at your sole risk, and further acknowledge and agree that to the extent permitted by law, the Platform, Services and the Software are provided "as is", with all faults and without warranty of any kind. Accordingly, the Company is not responsible for any problems, failures or technical malfunctions of any telephone lines or networks, computer online systems, servers or providers, computer equipment, software, or any other object or material, related to your use of the Platform, including but not limited to any damage resulting from the access, download or use of Company Content or other material used by you as part of your use of the Platform.
- (b) Further, the Company makes no warranties or representations regarding the security of material, data and information uploaded or submitted by you in your use of the Platform (including User Content), and is not responsible for the loss of any material, data and information uploaded or submitted by you in your use of the Platform (including User Content). You must take all steps necessary to ensure that any User Content used in connection with the Platform is regularly backed up by you or a third party.
- (c) The Company expressly disclaims, to the fullest extent permitted by applicable laws and regulations, any statutory or other guarantee or warranty relating to the Software, Services, Company Content and the Platform, including but not limited to guarantees of acceptable quality and warranties of merchantability or fitness for purpose. The Company cannot guarantee, and does not promise, any specific results from use of the Platform or the Services or the Software. In no circumstances shall the Company be responsible for any loss or damage, including personal injury or death, resulting from use of the Platform, from any User Content submitted as part of the Platform or from your conduct, whether online or offline
19. Security of User Content: Security of User Content: Notwithstanding clause 18, the Company will make reasonable efforts to ensure that all User Content uploaded by you as part of your access to the Platform is secure and not able to be accessed by unauthorised third parties, and is backed up. The Company may, in its discretion, and subject to the payment of a fee, attempt to recover lost data if accidentally deleted by you from the Platform.
- (a) in the case of goods (including the Software), and at the sole option of the Company, either (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and
- (b) in the case of services (including the Services), and at the sole option of the Company either (i) the re-supply of the services; or (ii) the payment of the cost of having the services re-supplied.
- (c) You expressly agree and acknowledge that you are not authorised or permitted to bind the Company in any way whatsoever in relation to any contract or agreement with any third party.