TERMS OF USE
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE EVERPERFORM PLATFORM. BY ACCESSING AND USING THE PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY CONTENT WITHIN THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE PLATFORM.
Terms of Use Agreement
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 organisations and individuals, to improve the performance of organisations, teams and individuals. The Services and the Platform together comprise the Company's proprietary platform known as "Everperform" (Platform). The Company can be contacted at Level 4, 8 Gwynne St, Cremorne 3121 or via email at privacy@everperform.com.
Compliance with Terms of Use
When first accessing the Platform you will be prompted to read these Terms of Use. By proceeding with using the Platform, you warrant and represent to the Company that you have read and understood these Terms of Use, and agree to abide by these Terms of Use.
Revision of Terms of Use
The Company may occasionally be required to modify or revise the terms upon which you are granted access to the Platform, as set out in these Terms of Use. We recommend that you periodically review these Terms of Use, to ensure that you are aware of any amendments. If the Company amends the Terms of Use, the Company will make reasonable endeavours to contact you to inform you of such changes (for example via email or notification on the Platform). However, you agree that the Company is under no obligation to notify you when these Terms of Use are amended, and acknowledge that your continued access and use of the Platform after the Terms of Use has been amended signifies your acceptance of the amended Terms of Use. If you no longer agree to the Terms of Use, it is your responsibility to deactivate your account.
Accounts
Once an agreement has been entered into you will be invited to use the Platform. You will need an account (Account). You will be required to select a unique username and choose a password for your Account. You must keep your Account password confidential and secure and 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.
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.
Company Content and Ownership
The Company grants to you a limited, non-exclusive, non-transferable licence to use the Software and Services, and to access and use the Platform and all other content and material associated with the Software, Services and Platform which is owned by the Company (Access Right). The Access Right ends after you stop using the Platform, or these Terms of Use otherwise cease or are terminated.
We may collect data based on your use of our Services, Software and Platform (Customer Data).You will retain ownership rights to any and all Customer Data. Subject to the terms and conditions on which our Services are provided, you grant Everperform a non-exclusive, limited term license to access, use, distribute, process and display Customer Data. You ensure and guarantee that you have secured all rights in and to Customer Data from any authorised users, as this may be necessary to grant the licence.
Use of Software and Company Content
You must not copy or reproduce the Software, the Company Content or any other element of the Platform by any means or in any form without the Company's prior written consent, except to the extent strictly required for you to access and use the Platform. You must not modify or alter the Software in any manner whatsoever, or merge all or any part of the Software with any other software, without the Company's written permission. You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software. You are solely responsible for the use of the Software and Company Content under your Account, and must ensure that the Software and the Platform is protected at all times from misuse, damage, destruction or any form of unauthorised use. Except to the extent specified to the contrary in these Terms of Use or the Licence Agreement with the Licensee, the Company is not be obliged to support the Software, the Services or the Platform, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise. You acknowledge that in the event that the Company modifies, enhances, updates or upgrades the Software or any other part of the Platform during the Term, these Terms of Use apply to that Software or Platform part.
Intellectual Property
(a) You acknowledge that the Software has not been sold to you or the Licensee by the Company, and accordingly, acknowledge and agree that the grant of the Access Right, and these Terms of Use, do not include any transfer of title or ownership to you or the Licensee of any rights in the Software, the Services, the Company Content (including any associated intellectual property rights, which include but are not limited to rights of copyright), any other aspect of the Platform, or any modifications, updates or new releases of the Software (or any associated intellectual property rights). You further acknowledge that in addition to any other remedies available to the Company under these Terms of Use or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software, the Services or the Platform will entitle the Company to avail itself of any equitable remedies against you or the Licensee which may be available, including but not limited to injunctive relief.
(b) All rights (including but not limited to intellectual property rights) in the Software, the Services, the Company Content and the Platform, including any modifications or alterations made by you or any third party, remain the property of the Company in all respects, regardless of whether or not such modifications or alterations were authorised by the Company (pursuant to these Terms of Use, the Licence Agreement with the Licensee or otherwise). Accordingly, all rights (including intellectual property rights) subsisting in any modifications or alterations will vest in the Company immediately upon creation, without the need for any further formality or documentation. You agree to execute (or procure the execution of) any documentation, and perform any other acts, required by the Company to confirm this fact and give effect to this clause, and will if necessary assign to the Company (or procure the assignment of) all rights (including intellectual property rights) arising out of any modifications or alterations to the Software, the Services, the Company Content or any other aspect of the Platform.
(c) You represent and warrant that the content you submit through the Platform (User Content) does not and will not infringe the rights, including without limitation, the intellectual property rights, of any person or other third party.
(d) The Company may only use User Content in a way that does not disclose personal information to any third party, where personal information has the meaning given under applicable privacy laws.
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.
(b) Without limiting clauses 6 or 14(a) of these Terms of Use, the Company reserves the right to investigate and take any appropriate action (including removal of User Content, suspension or termination of Accounts and access to the Platform, or legal action, if necessary) against you if the Company determines, in its sole discretion, that you have:
(c) 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
(d) 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
(vi) involve using the Platform in a manner that is contrary to these Terms of Use or inconsistent with any applicable laws and regulations.
(e) 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.
(f) 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.
(g) For the avoidance of doubt, the Company reserves the right to reject, refuse to post/upload, or delete any User Content in its sole discretion, at any time (including after successful posting/uploading) for any reason, including if the Company determines that User Content is contrary to these Terms of Use or considers that User Content is, or is potentially, offensive, illegal, infringes the rights of another party, bullies or harasses another person, or harms or threatens the safety of another party.
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.
Cookies
You acknowledge and agree that the Company may, from time to time, use cookies in connection with the Platform, for purposes including but not limited to storing your Platform preferences, determining whether you have installed all required software, to authenticate sessions, to customise material that is made available to you, or to otherwise provide the Platform to you. You acknowledge that if you set your computer to block all cookies, you may restrict your access to certain features of the Platform.
Your Warranty
You warrant that you have authority to enter into and to perform your obligations under these Terms of Use, and that you have the ability to perform, and will perform, your obligations under these Terms of Use.
Disclaimers
(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. The Company will take all reasonable measures to ensure the highest level of service is available to you and issues that do arise are rectified in a timely manner as laid out in the Incident Management policy. 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 any warranties of any kind. Accordingly, neither the Company or you will be held to account for any failure or delayed delivery of expected performance in the event of occurrences that fall beyond reasonable doubt such as, denial-of-service attacks, a failure of third party hosting, strikes, riots, fires, acts of god, and governmental action or any damage resulting from the access, download or use of other non-official material used by you as part of your use of the Platform.
(b) 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.
(c) The Company may only use User Content in a way that does not disclose the personal information of your clients (or their employees that use the Platform) to any third party, where personal information has the meaning given under applicable privacy laws.
Security of User Content
Everperform is committed to safeguarding the confidentiality, integrity and availability of all User Content, to ensure that all regulatory, operational and contractual requirements are fulfilled. Everperform’s policies surrounding Information Security can be found in the Everperform Information Security Policy.
Limitation of Liability
To the fullest extent permitted by applicable laws and regulations, the Company will not be liable for any direct, consequential, special or indirect loss suffered by you or any other party arising from your use of the Software, Services, User Content or the Platform. Notwithstanding anything to the contrary in these Terms of Use, to the extent the Company is unable to fully exclude its liability pursuant to applicable legislation, the Company's liability to you in respect of any cause of action whatsoever will not in aggregate exceed a total amount of $10. Further, to the extent that it is entitled to do so, the Company limits its liability in respect of any breach of any applicable legislation which cannot lawfully be excluded (including the Competition and Consumer Act 2010 (Cth) (CCA)) to:
(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) 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
(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 Content in a way that does not disclose the personal information of customers’ clients (or their employees that use the Platform) to any third party, where personal information has the meaning given under applicable privacy laws.
Indemnity
You agree to indemnify and hold the Company, its subsidiaries and affiliates and their respective officers, agents, partners and employees (Indemnified Parties), from and against any loss (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by any of the Indemnified Parties in relation to any claim, suit, demand, action or proceeding by any person against any of the Indemnified Parties arising from your use of the Software, the Services, the Platform or any breach by you of these Terms of Use.
Confidentiality
You agree that you will keep secret and confidential, and not directly or indirectly disclose, or allow to be disclosed to any third party any commercial aspects of these Terms of Use or the Licence Agreement that are not public knowledge, and any of the confidential information of the Company (Confidential Information), except to the extent necessary for you to properly use the Platform or perform your obligations or exercise your rights pursuant to these Terms of Use, unless otherwise expressly authorised in writing by the Company to do so. You will inform the Company immediately upon becoming aware or suspecting that an unauthorised person has become aware of any Confidential Information. You are permitted to disclose Confidential Information to such third parties as are strictly necessary, where you are required by law to do so (provided that you give the Company reasonable advance notice and opportunity to object to the requirement to disclose such information or obtain an appropriate order to protect its Confidential Information), or if the Confidential Information enters the public domain (other than as a result of a breach by you of your obligations under this clause). On request by the Company, you will immediately return to or erase/delete/destroy (at the Company's option) all Confidential Information in your possession or control. The obligations of confidence under these Terms of Use will continue to apply after expiration or termination of these Terms of Use.
Governing Law
These Terms of Use will be governed by the laws of the state of Victoria, and you and the Company expressly submit to the exclusive jurisdiction of the courts of Victoria in respect of all matters relating to these Terms of Use and your use of the Platform generally.
General
(a) You agree that these Terms of Use constitutes the entire agreement between you and the Company regarding your access and use of the Software, the Services, the User Content and the Platform.
(b) You acknowledge the right of the Company to take action against you to prevent a breach of these Terms of Use and further acknowledge that damages may not be an appropriate remedy in those circumstances. You also acknowledge that the failure of the Company to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.
(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.
(d) Every provision of these Terms of Use is independent of the other. Any provision which is prohibited or unenforceable in any jurisdiction will be ineffective to the extent only of such prohibition or unenforceability, and the other provisions will continue in full force and effect.
(e) You agree that you will do all things necessary to give full effect to these Terms of Use and any transactions contemplated by them.