User Agreement
Team Management Systems (“TMS”) allows you to use the TMS Global platform to generate Reports under the terms of this Agreement. You must accept this Agreement to use the TMS Global platform. If you do not agree with the terms of this Agreement you must not use the TMS Global platform.
1 DEFINITIONS
1.1 In this Agreement, unless the contrary intention appears:
“Agreement” means this agreement;
“Commencement Date” means the date you accept the terms of this Agreement;
“Confidential Information” means in the case of the User, User Data and in the case of TMS includes: a) all information treated by TMS as being confidential; b) information relating to the TMS Global platform; c) information relating to the personnel, policies, business, systems and data of TMS; and d) information relating to the terms on which access to the TMS Global platform is being provided to you pursuant to this Agreement;
"Force Majeure” means a circumstance beyond the reasonable control of TMS which results in TMS being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to: a) any faults, defects, incorrect operation of or other circumstance affecting or relating to User Access Facilities or the Internet Hosting Service Provider; and b) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, pandemic, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes.
"Internet Hosting Service Provider” means the person engaged by TMS to host the TMS Global platform;
“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how, instructions, procedures, and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;
“Report” means the reports generated by the TMS Global platform;
“The Facilitator” means you, a distributor or customer of TMS or other entity who has arranged for you to access the TMS Global platform or who processes the Report or User Profile Data on behalf of a customer of TMS;
“TMS Global platform” means online platform provided by TMS for the provision of the TMS Global platform.
“User Access Facilities” means telecommunications, networks, systems and any other facilities used or required for accessing and making use of any Services other than the facilities actually provided by TMS from time to time under this Agreement.
“User Data” means the data inputted or uploaded by you onto the TMS Global platform but excludes User Profile Data.
“User Profile Data” means your profile information which you input or upload onto the TMS Global platform being your name, email address, job title and “about me” information.
2 INTERPRETATION
2.1 In this Agreement, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
(b) a reference to a clause number is a reference to its subclause;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(f) a reference to a clause is a reference to a clause or subclause of this Agreement;
(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(i) a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;
(j) the recitals to this Agreement do not form part of the Agreement;
(k) monetary references are references to Australian currency.
3 ACCESS TO THE TMS GLOBAL PLATFORM
3.1 TMS grants to you a non-exclusive, world-wide, limited-time, non-transferable right to access and use the TMS Global platform in accordance with the terms and conditions of this Agreement.
3.2 The TMS Global platform utilises User Profile Data, User Data to generate Reports based on the user. You acknowledge and accept that: (a) the quality and accuracy of the Reports are dependent on the quality and accuracy of the User Data and User Profile Data; and (b) the Reports and User Profile Data are to be shared with, and provided to The Facilitator.
3.3 TMS will use commercially reasonable efforts to ensure the TMS Global platform is functional and available 24 hours a day, seven days a week, except for: (a) scheduled downtime, or (b) any unavailability caused by circumstances beyond the reasonable control of TMS, including without limitation, Force Majeure events.
3.4 TMS may configure the TMS Global platform and its system and determine the nature and manner of its functionality in its discretion.
3.5 You undertake to TMS that you will:
(a) provide TMS with all necessary co-operation and will comply with all reasonable directions given by TMS in relation to this Agreement;
(b) fully comply with this Agreement and only use the TMS Global platform only in accordance with this Agreement;
(c) use commercially reasonable efforts to prevent unauthorised access to or use of the TMS Global platform;
(d) only use the TMS Global platform in accordance with applicable laws and government regulations; and
(e) notify TMS immediately on becoming aware of any unauthorised access, unauthorised use or copying of the whole or any part of the TMS Global platform.
3.6 You must not:
(a) without the prior written approval of TMS, disclose TMS’ Confidential Information;
(b) make the TMS Global platform available to any other person;
(c) use the TMS Global platform to store, upload or transmit infringing, libellous, sexually explicit, discriminatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(d) distribute viruses, malware or any other material which may interfere with or disrupt the integrity or performance of the TMS Global platform or the system or network from which the TMS Global platform provided;
(e) attempt to gain unauthorised access to the TMS Global platform; (f) use the TMS Global platform for any purpose except in accordance with this Agreement;
(g) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the TMS Global platform available to any third party;
(h) use the TMS Global platform in any way that could damage the reputation or goodwill of TMS, or the goodwill or other rights associated with the TMS Global platform; (i) access or reproduce the TMS Global platform to create any derivative works or works which compete with the TMS Global platform, or permit any third party to do so;
(j) de-compile, disassemble or otherwise reverse engineer the TMS Global platform or permit any third party to do so; or
(k) modify, remove or circumvent any markings, copyright or proprietary notices on, or security measures protecting, the TMS Global platform, or permit any third party to do so;
(l) modify the whole or any part of the TMS Global platform or combine or incorporate the whole or any part of TMS Global platform in any other programme or system without the prior written consent of TMS;
(m) use the TMS Global platform in any way that could otherwise be regarded by TMS, on reasonable grounds, to be unacceptable (TMS may from time to time notify you of the circumstances which TMS regards as unacceptable).
3.7 Third party facilities, including software programmes, may be necessary or appropriate for access to or use with the TMS Global platform. You agree that your right to make any use of such facilities is governed by the terms of the relevant third party license/services agreement and not by this Agreement. You agree that TMS cannot control and will not be liable for the integrity, functionality, reliability, appropriateness or such facilities.
3.8 You shall be responsible for providing and maintaining your own User Access Facilities.
3.9 You warrant and must ensure that all User Access Facilities meet security and other standards required by TMS from time to time and are and will remain free from any circumstances (including viruses) which may adversely affect TMS, the TMS Global platform and are otherwise reasonably appropriate for use in conjunction with the TMS Global platform.
3.10 TMS may, without liability to you, immediately suspend all or any part of the TMS Global platform, and remove or disable access to anything that contravenes this clause or is otherwise in breach of this Agreement.
4 USER DATA
4.1 Nothing in this Agreement should be construed as a transfer of ownership of User Data or User Profile Data.
4.2 You agree that you have sole responsibility for the accuracy, quality, integrity, legal compliance, input, reliability, appropriateness and rights ownership in all User Data and User Profile Data.
5 PLATFORM
5.1 You acknowledge that:
(a) TMS’s Internet Hosting Service Provider will host the TMS Global platform;
(b) hosting of the TMS Global platform is subject to the service level agreement between TMS and the Internet Hosting Service Provider; and
(c) TMS may update the functionality of the TMS Global platform and agree that, subject to TMS’s obligations under this Agreement, TMS may make changes to the TMS Global platform, including its functionality at its sole discretion.
5.2 TMS is under no obligation to upgrade the TMS Global platform.
5.3 TMS will, at its sole discretion, from time to time, perform preventive or remedial maintenance on the TMS Global platform which may cause some or all of the TMS Global platform to become unavailable or non-functional. TMS will endeavour to give at least 24 hours’ notice of such maintenance and schedule such maintenance for the mutual convenience of the parties.
5.4 You acknowledge that TMS may, with no liability to you, have to perform urgent maintenance in business hours in cases where early symptoms or major faults are detected and urgent preventive maintenance action is required to limit the impact or occurrence of the fault. You acknowledge that while TMS will endeavour to inform you of any unscheduled maintenance TMS may not be able to provide notice where such urgent maintenance is required. TMS will use its best endeavours to resume the full functionality of the TMS Global platform as soon as is practicable.
5.5 TMS does not warrant that the TMS Global platform or the Reports will be free of defects, run without interruption, be error free, meet your expectations, function in combination with the hardware or software products of third parties, or that all programme errors will be corrected.
5.6 You acknowledge that TMS may access and monitor usage of the TMS Global platform for the purposes of maintenance of the TMS Global platform, including analysis of errors and installation of patches or upgrades and/or to verifying compliance with this Agreement.
6 PRIVACY
6.1 In performing this Agreement, TMS will comply with its privacy policy and with any applicable privacy or data protection laws in force from time to time.
6.2 TMS’s privacy policy as at the date of this Agreement is available upon request or available on the TMS website. TMS’s privacy terms are subject to change from time to time, provided that any such change will not materially reduce the level of privacy protection for User Data, User Profile Data and the Reports.
6.3 You acknowledge that by using the TMS Global platform, User Data, User Profile Data or the Reports may be transmitted or stored outside of Australia.
6.4 You warrant to TMS that you are authorised to distribute and release User Data and User Profile Data to TMS, and you are not breaching any applicable data privacy rule or regulations, any contractual obligations, or any of its internal privacy policies by distributing and releasing User Data or User Profile Data.
7 INTELLECTUAL PROPERTY
7.1 Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
7.2 You acknowledge that TMS owns or licenses all Intellectual Property Rights in the TMS Global platform, the Report and anything developed or delivered under this Agreement.
8 INDEMNIFICATION, LIMITATION OF LIABILITY AND WARRANTY
8.1 Subject to clause 8.2, you fully indemnify TMS and keep TMS fully indemnified from and against any direct loss, cost or liability (including a claim made by a third party) that has been reasonably incurred by TMS to the extent to which this is directly caused by or contributed to by: (a) a breach of this Agreement (including without limitation a breach of any warranty contained in it) by you; (b) misuse of the TMS Global platform by you; (c) any infringement by you of the Intellectual Property Rights of a third party; and (d) any wilful, unlawful or negligent act or omission by you.
8.2 TMS is not liable under this Agreement for circumstances for which it is not responsible, including, without limitation: (a) Force Majeure events; (b) non-compliance with the provisions of this Agreement; (c) unauthorised modifications to or interference with the TMS Global platform by you or third parties; (d) errors in the operation of the TMS Global platform by you or third parties; or (e) influences from systems or programmes that have been provided by third parties; (f) a modification of the TMS Global platform by anyone other than TMS; (g) any virus, malware or other material which may interfere with or disrupt the integrity or performance of the TMS Global platform or the system or network from which the TMS Global platform is provided; (h) your use of the TMS Global platform in a manner contrary to the instructions given to you by TMS; or (i) your use of the TMS Global platform after notice of the alleged or actual infringement from TMS or any appropriate authority.
8.3 To the extent permitted by law, TMS’s total liability to you for all losses or damages arising directly or indirectly as a result of TMS’s performance or non performance of its obligations under this Agreement is limited, at TMS’ sole discretion, to either: (a) resupply of access to the TMS Global platform; (b) repair of the TMS Global platform; or (c) terminate this Agreement and refund to The Facilitator of fees paid to TMS by The Facilitator for your use of the TMS Global Platform.
8.4 In the event that any refund is provided under clause 8.3(c), due to TMS’s non-performance, the refund will be limited to the duration of any non-performance.
8.5 TMS will not be liable to you for any indirect, special or consequential loss or damage of any nature whatsoever, including without limitation, loss of profits or revenue, loss of business opportunity or loss of savings or money, loss of, damage to or corruption of data, resulting from this Agreement or from a breach of any of the warranties, terms, conditions or any other provision of this Agreement or from negligence or breach of statutory duty or otherwise.
8.6 Except as provided in this Agreement and to the extent permitted by law, all conditions and warranties concerning TMS’s performance of the TMS Global platform (whether as to quality, outcome, fitness, care, skill or otherwise) expressed or implied by statute, common law, equity, trade, code of practice, custom or usage or otherwise are expressly excluded.
8.7 TMS is not liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for the performance of any third-party products or services which are used in association with the TMS Global platform.
8.8 Each party warrants to the other that it has the right and ability to enter into this Agreement and that this Agreement will be legally binding on it.
8.9 Except as expressly and specifically provided in this agreement and to the extent available at law: (a) you assume sole responsibility for results obtained from the use of the TMS Global platform by you, and the Reports and conclusions drawn from such use; (b) TMS will have no liability for any damage caused by errors or omissions in any information or instructions provided to TMS by you in connection with the TMS Global platform, or any actions taken by TMS at your direction; (c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (d) the TMS Global platform is provided to you on an “as is” basis.
8.10 You warrant that you have not relied on any representation made by TMS which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications in any way relating to the TMS Global platform including catalogues, website or publicity material produced by TMS. You acknowledge that to the extent TMS has made any representation which is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.
8.11 This clause survives termination of this Agreement by either party for any reason.
9 FORCE MAJEURE
9.1 TMS shall not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, TMS’s obligations will be suspended. If a delay or failure by TMS to perform its obligations due to Force Majeure exceeds sixty (60) days, TMS may immediately terminate the Agreement on providing notice in writing to you.
9.2 If this Agreement is terminated pursuant to clause 9.1, TMS is not liable to refund any moneys paid by you pursuant to this Agreement.
10 ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
11 DISPUTES
11.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators & Mediators Australia. During such arbitration, both Parties may be legally represented.
11.2 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
12 GOVERNING LAW
This Agreement will be governed by and construed according to Queensland law.