Version date: 1 July 2017
Please read the following Subscription Agreement (Agreement) carefully as the provisions contained in this Agreement govern your rights and obligations in respect of the Services supplied by us.
1. ACCEPTANCE OF AGREEMENT
1.1 This Agreement is made by and between The Performance Management Company Pty Ltd or its successors and assigns (us or our) and anyone (you or your) who subscribes to, or accesses or uses any of, our Services.
1.2 By checking on the “You acknowledge and agree that you have read and have accepted our Terms of Service” acceptance box prior to subscribing to, or using or accessing, our Services, you acknowledge that:
2.1 The Services covered in this Agreement include:
(a) supply of the following content, text, documents, images, photographs, animation, video, audio, music and materials (collectively, Resources):
(i) regulatory compliance-related documentation such as:
a. compliance checklists, frameworks and schedules,
b. compliance policies, manuals, guides and tools,
c. legal and business templates, and
d. any other content, text, documents, images, photographs, animation, video, audio, music and materials as may be added from time to time by us;
(ii) regulatory compliance-related training materials such as:
a. compliance and risk management training presentations, and
b. contract and sales performance training presentations;
(b) supply of regulatory compliance-related management and administration services;
(c) supply of contract management and administration services;
(d) supply of analytical material and reports such as industry reports, training reports, administration reports and so on;
(e) supply of support services including compliance-related, general and technical support services relating to your subscription to, or access or use of, our Services.
2.2 Unless explicitly stated otherwise, any new, improved or updated services, resources, features, content or facilities offered, supplied or made available from time to time by us to you shall be subject to the provisions of this Agreement.
3. ONLINE PLATFORM
3.1 Subject to the limitations specified in this Agreement, all Services supplied by us to you under this Agreement are supplied through our at www.tpmcompany.com.au (Website) or your dedicated workspace on an online platform (Online Platform) which has been sourced from a third party provider (Third Party Provider).
3.2 The dedicated workspace is provided for your use for the duration of your subscription to our Services (Subscription Term).
3.3 The Third Party Provider of the Online Platform which we are currently using is OneHub. Your use of the Online Platform and our provision of a dedicated workspace to you is subject to OneHub’s terms of service.
3.4 We have no control or influence over any actions or steps that may be taken by the Third Party Provider in relation to the Online Platform.
3.5 Whilst we have conducted our due diligence in reviewing the features and capabilities of the Online Platform, in particular, its security features, we make no representations as to any features that may be offered or supplied by the Third Party Provider in relation to the Online Platform and we are not responsible for any loss or damages incurred by you in relation to your access and use, or loss of access and use, of the Online Platform.
3.6 You are advised to make backup copies of any documents or materials you upload to, or create, modify, use or otherwise access from the Online Platform including our Resources supplied to you through the Online Platform.
3.7 If you do not agree to OneHub’s terms of service and the limitations contained in this Agreement relating to the Online Platform, you must inform us in writing immediately (email: email@example.com). All Services supplied to you will then be supplied in an alternative manner on such terms as may be agreed by us in writing.
3.8 From time to time, we will review the features of the Online Platform and its suitability for use with our Services and may decide, at our discretion, to remain with the existing Third Party Provider, change providers or develop our own Online Platform.
4. SUPPLY OF SERVICES
4.1 The subscription of our Services must be made through the registration form (Registration Form) located on our Website. You must select one of the following program options (Compliance Programs) which provide varying levels of Services:
(a) Starter Compliance Program
(b) Business Compliance Program
(c) Any other levels of Compliance Programs as may be offered from time to time
4.2 The details of the varying levels of Services are contained in our Compliance Programs Overview brochure.
4.3 For the purposes of this Agreement:
(a) the Registration Form submitted by you is deemed an offer by you to subscribe to a Compliance Program in accordance with this Agreement;
(b) we are not bound by your Registration Form and we may at our sole discretion, reject or amend the Registration Form in part or in its entirety, which, if we do so, we will inform you thereof;
(c) otherwise, on our acceptance of your Registration Form, you are bound by the terms of this Agreement; and
(d) a contract for the supply of Services at a level that is based on the relevant Compliance Program is deemed to have been made on the terms of this Agreement when we send you a confirmation email of your subscription with us.
4.4 You may, at your discretion, change Compliance Programs by changing the Compliance Program option in your Account.
5. SUBSCRIPTION FEE
5.1 You are required to pay a subscription fee for our Services (Subscription Fee).
5.2 The Subscription Fee varies depending on the Compliance Program you select. The Subscription Fee may be reduced by any offers, discounts or promotions which we may make from time to time at our discretion.
5.3 Subscription to any Compliance Program is on an annual Subscription Term basis.
5.4 The Subscription Fee is charged and collected in advance and the Subscription Term is automatically renewed by us at the end of the current Subscription Term.
5.5 If you do not wish to renew your subscription at the end of the current Subscription Term, you must give us at least 15 days written notice in advance.
5.6 The Subscription Fee will not be increased during Subscription Term. However, we reserve the right to increase our Subscription Fee for the next Subscription Term on renewal of the current Subscription Term without providing you with any reasons for doing so. If we increase the Subscription Fee, we will give you at least 30 days written notice in advance and the new Subscription Fee will be effective on the next annual Subscription Term and thereafter.
5.7 Add-on fees may be charged by us over and above the Subscription Fee cost for certain services, as quoted to you on our Website or through any written communications made to you.
6. PAYMENTS AND BILLINGS
6.1 Payments of the Subscription Fee and any other fees charged by us may only be made online through third party payment gateway providers including PayPal and Stripe (Payment Providers). The payment options are displayed on our Website.
6.2 We have no control over the payment facility of the Payment Providers and we are unable to guarantee the security of any information submitted or provided by you through or in connection with the same.
6.3 You agree that:
(a) any submission or provision of information (including provision of credit card information) by you to the Payment Providers is made at your own risk;
(b) we disclaim any and all liability for, or arising in connection with, any interception, ‘hacking’ or other unauthorised access of your information by any unauthorised third parties;
(c) you are responsible for ensuring that the transaction, credit card information and all other details you provide in relation to your payments are correct. We further disclaim any and all liability for, or arising in connection with, any incorrect transactions, errors or otherwise caused by factors outside of our control.
6.4 By subscribing to any of our Compliance Programs, you agree to provide an advance authorisation to us to charge your credit or debit card or account or any other nominated payment source through a Payment Provider on a regular basis depending on the Subscription Term selected by you until such time as you cancel your subscription to our Compliance Program.
7.1 The Subscription Fee is exclusive of any goods and services tax (GST) and any other taxes, levies or duties which may be imposed by any relevant tax authorities having jurisdiction over us or our business. You are responsible for payment of any such taxes, levies or duties, excluding any taxes based on our income or earnings.
8. USER NAME AND PASSWORD
8.1 You are required to create an account comprising a username and password (Account) with us and with the Third Party Provider in order to access and use our Services and Online Platform respectively.
8.2 You are responsible for maintaining the security and confidentiality of the Account, the username and the password, and are fully responsible for all activities that occur under the same.
8.3 You agree to:
(a) access the Account for your own use only;
(b) provide complete and accurate contact and billing information, and update such information as soon as possible, and in any event, no less than 30 days of any changes to such information;
(c) immediately notify us of any unauthorised use of your Account, login or password or any other breach of security; and
(d) ensure that you logout from your Account at the end of each session.
8.4 We cannot and will not be liable for any loss or damage arising from your failure to comply with this provision.
9. PROPRIETARY RIGHTS
9.1 Unless specified otherwise in clause 9.3:
(a) all proprietary rights, title and interests in the Resources supplied as part of our Services belong solely and exclusively to us or our assigns, or any relevant third party; and
(b) all proprietary rights, title and interests in the Online Platform belong to the Third Party Provider or their assigns.
9.2 Clauses 9.1 and 9.2 do not apply to any existing proprietary rights, title and interests you or your assigns may have in relation to the supply of any content, text, documents, images, photographs, animation, video, audio, music and materials by you to us.
9.3 All rights which are not expressly granted to you under this Agreement shall be reserved by us.
9.4 Unless expressly authorised by the Provider, you hereby acknowledge and agree that:
(a) you may not copy, modify, translate, publicise, reproduce, exploit, broadcast, transmit, transfer (through file sharing networks or otherwise), distribute, perform, display, rent, lend or sell any of, or any portion of, our Services, or create any derivative works from our Services for any purpose other than for your internal processes only;
(b) you may not alter any text, graphics, images, audiovisual or any other materials contained in our Services or remove any trademark or copyright notices thereof;
(c) you may not modify, reverse engineer, decompile or disassemble our Services, whether in whole or in part, or tamper with any digital rights management functionality of our Services, where applicable;
(d) you may not bypass, defeat or circumvent any of the functions or protections embodied in our Services or any mechanisms operatively linked to our Services, or separate any individual component for use on more than one device or any computer, electronic device or other locally-accessible repository;
(e) you may not in any way interfere with the operation of our Services or attempt to gain unauthorised access to, or use of, our Services; and
(f) you may not develop, distribute or sell any application, software or other functionality capable of launching, being launched from or otherwise integrated with our Services.
9.5 If you have subscribed to one of our Compliance Programs, you may modify, delete, update or add to the copy of any compliance documentation resources we supply to you through your dedicated workspace or such other means of delivery as may be agreed between us from time to time.
9.5 Our name, logo, images and icons as may be created, produced or used from time to time for or in connection with our Services (Marks) are our trademarks or registered trademarks or that of our related entities. Without express and written prior permission, you agree not to display or use in any manner the Marks for any purpose whatsoever.
10. ACCESS AND USAGE
10.1 The Website, the Services and Online Platform are all offered, supplied and provided on an “as-is” and “as available” basis. Accordingly, we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any data, information, communications or personalised settings made by you.
10.2 You understand that you are responsible for obtaining access to the Website, the Services and the Online Platform, and that access may involve third party fees (such as internet service provider or airtime charges) outside of the Subscription Fee and any other fee payable to us. You are solely liable for those fees and must provide and are responsible for all equipment necessary to access the Website, our Services and Online Platform.
10.3 You may not:
(a) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or data transmitted through the Website, our Services and Online Platform;
(b) disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
(c) manipulate or bypass the Website, our Services and Online Platform systems for any reason whatsoever, including bypassing of any restrictions or limits placed on the third party hosting service providers;
(d) interfere with or disrupt the Website, our Services and Online Platform or systems connected to the Website, our Services and Online Platform or disobey any requirements, procedures, policies or regulations of networks connected thereof;
(e) take any action that places an unusually large load on the infrastructure of the Website, our Services and Online Platform, or bandwidth connecting to a Website, or take any action that includes the use of any data accumulation, tool, robot or spider to compile, disseminate, extract, process, monitor or copy any web pages; and
(f) intentionally or unintentionally violate any applicable local, state, national or international law.
10.4 We have no control over the actions or inactions of the third party hosting service providers, and you agree that we are not in any way be responsible for any loss or damage incurred by you as a result of such action or inaction, including hosting faults such as delayed server response times and server down times.
11.1 All Resources written or prepared by us or on our behalf are supplied to you on an “as-is” and “as-available” basis only. You agree that:
(a) all Resources supplied to you through or in connection with any of our Services are provided for information only and do not take into account your objectives, personal, business or commercial situation, requirements or needs;
(b) whilst every care is taken in their preparation, we make no representation that the content of Resources provided, including the Compliance Risk Assessment Report provided to you, or any other Services supplied by us, is fit for your particular purpose, and accepts no responsibility for any loss or damage or cost incurred as a result of your use of the Resources or our Services or any part thereof;
(c) no advice, legal or otherwise, is provided by us and you are strongly advised to use our consultancy services to provide specific legal and regulatory advice for the application of any legislation, rules or regulations to you, your business or your organisation;
(d) no reliance on such Resources may be placed by you or any other person in your decision to access or use our Services, or to subscribe or re-subscribe to the same;
(e) under no circumstances will we be liable in any way for any Resources, including, but not limited to, for any errors or omissions in the Resources, or for any loss or damage of any kind incurred as a result of the use of the Resources;
(f) you are not entitled to use such Resources as a basis for any cause of action in law or otherwise;
(g) the Resources are subject to changes and updates and may expire without notice and content update schedules to Resources vary depending on legislative and policy changes and we make no guarantee, representation or warranty regarding the timeliness, reliability, accuracy, completeness, correctness or usefulness of the Resources or any parts thereof;
(h) we take no responsibility for formatting or other errors resulting from software errors, defects, incompatibility or viruses, or for any failure on your part to create any backup copies of your files including any Resources supplied to you.
11.2 The Resources and our Website may also contain content prepared, written, submitted, uploaded or otherwise supplied by this parties including the following (collectively, Third Party Content):
(a) articles, knowledge base materials and other content prepared by the Third Party Provider of the Online Platform;
(b) articles or materials from third party authors posted on our Website;
(c) content of regulatory bodies linked from or copied in our Website;
(d) content from other users of our Services.
11.3 In accessing, downloading, viewing or using Third Party Content, you agree that:
(a) we do not in any way guarantee the accuracy, integrity, completeness, quality or authenticity of the information contained in any Third Party Content and no person may rely on such Third Party Content;
(b) we have no control, authority or influence over any Third Party and cannot be held liable over the acts or omissions of the same and we disclaim all liability arising from any loss or damages suffered by you or any other person as a result of your reliance on such Third Party Content or your correspondence or dealings with a Third Party.
12. CONTENT UPLOADED BY YOU OR YOUR USERS
12.1 With respect to any content, text, documents, images, photographs, animation, video, audio, music and materials uploaded, created or entered by you or your authorised user (Licensee Content), we are under no obligation, and is unable, to monitor any Licensee Content uploaded, created or entered by you or your authorised user.
12.2 You agree that:
(a) you are solely and entirely responsible for the Licensee Content;
(b) you must not, and you must ensure that your authorised user must not, upload or enter or otherwise make available through or in connection with our Services any Licensee Content that:
(i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous or otherwise objectionable;
(ii) you do not have a right to make available under any law or under contractual or fiduciary relationships;
(iii) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(iv) comprises “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(v) 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, including our Services or the Online Platform; or
(vi) purports to impersonate any other person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity.
(c) you are required to back-up your Licensee Content to minimise risk of loss or damage arising from the inability to download, access or otherwise use such Licensee Content through or in connection with our Services. The Provider shall not be in any way responsible for any loss or damage to your Licensee Content for any reason whatsoever.
13. SUSPENSION AND TERMINATION
13.1 This Agreement commences on Effective Date and continues for the duration of the Subscription Term and for as long as you continue to access and/or use our Services, whether on a subscription basis or otherwise, unless earlier terminated in accordance the other provisions of this clause.
13.2 This Agreement may be suspended for any duration or terminated immediately by us without notice to you on the occurrence of the following events:
(a) breaches or violations of this Agreement;
(b) requests by law enforcement or other government agencies;
(c) discontinuance of our Services or any part thereof by us;
(d) unexpected technical or security issues or problems; and
(e) any force majeure events occurring to us.
13.3 Upon termination of this Agreement, all rights granted to you under this Agreement shall cease with immediate effect and your Account will be closed. You must immediately discontinue all access to and use of our Services.
13.4 You will not be entitled to a refund of your Subscription Fee or any portion thereof if this Agreement is suspended or terminated for any reason whatsoever unless otherwise agreed in writing by us. We shall not be liable for any loss or damage suffered by you or any third party in any way in respect of such suspension or termination.
13.5 Clauses 3, 6, 9 to 13 and all disclaimers and limitations of liability shall survive the termination or expiration of this Agreement for any reason as they apply to the rights granted by us and the restrictions placed on you herein.
14. EXCLUSIONS OF LIABILITY AND INDEMNITY
14.1 To the fullest extent of the law, we expressly disclaims all conditions, warranties, representations, liabilities and obligations of any kind, whether express or implied, including, but not limited to any conditions or warranties as to:
(a) merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of our Services;
(b) the results procured from the access and use of our Services;
(c) the fact that such results are accurate, complete or otherwise reliable;
(d) the functions contained in, or operations of, the Online Platform;
(e) the fact that our Services will not damage any software, hardware, data or network services, including any device owned by you; and
(f) the fact that any such software, hardware, data or network services upon which our Services depends on will continue to be available, uninterrupted or unmodified.
14.2 You expressly understand and agree that we, our subsidiaries, affiliates, officers, agents, co-branders or other partners and employees are not liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:
(a) damage to property;
(b) loss of profits or revenue;
(c) loss of data;
(e) other tangible and intangible losses, even if we have been advised of the possibility of such damages,
resulting from or arising in connection with the download, installation, access and use of our Services by you or any other person under this Agreement.
14.3 You agree to fully indemnify, defend and hold us and our subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of any provisions of this Agreement.
14.4 Subject to the provisions contained in this Agreement, if we are liable under the law in respect of our Services for any reason whatsoever, such liability shall be limited to:
(a) the supply of our Services again; or
(b) the refund of an amount equivalent to the last Subscription Fee paid by you if, at our sole and exclusive opinion, we are unable to supply our Services again to you, or to resolve the defect.
15. YOUR REPRESENTATIONS
15.1 You represent and warrant that:
(a) you have the legal right and authority to enter into this Agreement;
(b) you have the legal right and authority to perform your obligations under this Agreement;
(c) by entering into this Agreement, you are not violating or creating a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on you; and
(d) all information or data supplied to us in connection with this Agreement and your use and access of our Services are accurate, complete and current.
16.1 A party notifying or giving notice under this Agreement must give notice in writing and:
(a) with respect to us, to the email address firstname.lastname@example.org, or such other address as may be updated from time to time on the Website; and
(b) with respect to you, to the email address listed as your contact address in your Account.
16.2 A notice given to us in accordance with this clause is received when the sender does not receive any failed delivery email notification from either its, or the recipient’s, mail server within two (2) days after the date of the email.
16.3 A notice given to you by way of an update is deemed to have been received by you within two (2) days after the date the update was made available on the Website.
17. NO ASSIGNMENT
17.1 You must not assign any of your rights or obligations under this Agreement to any third parties.
17.2 We may, without any notice to you, assign any of our rights or obligations herein to any third party.
18. GOVERNING LAW
18.1 This Agreement and any obligations arising out of or in relation to Agreement shall be governed by and construed in accordance with the laws of Australia.
19.1 You understand, agree and acknowledge that the courts of Australia are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims and disputes relating to any non-contractual obligations) which may arise out of or in connection with this Agreement and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.
20. ENTIRE AGREEMENT
20.1 This Agreement constitute the entire agreement between us, superseding any prior oral or written proposal, agreements or other communication between us with respect to the supply of Services.
20.2 This Agreement may be modified from time to time by us by way of written notification to you in accordance with clause 16.
21. WAIVER AND SEVERABILITY OF TERMS
21.1 Our failure to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision.
21.2 If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.