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.
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 firstname.lastname@example.org.
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.
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
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
(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.
(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.
(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
(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.
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. 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
(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.
(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.