User Agreement
1 ACCESS TO THE PLATFORM
1.1 Team Management Systems (TMS, us, we, our) permits you to use the Platform (Platform) to generate and view your Profiles (Profiles).
1.2 Upon acceptance of this User Agreement, or if you continue to use our Platform, you are bound by the terms of this User Agreement.
1.3 Your use of our Platform is governed by the terms and conditions in this User Agreement.
1.4 In addition, the terms of any Services Agreement we have with you, our Client and your Accredited Practitioners and our privacy policies may also govern your access and use of our Platform and our collection, use and disclosure of your User Account Data, User Data and Profiles.
1.5 If there are any inconsistencies between this User Agreement and our Services Agreement with you, your Accredited Practitioner or our Client, the terms of that Services Agreement will prevail.
2 YOUR DATA AND PROFILES
2.1 Our Platform utilises your User Account Data and User Data to generate Profiles which are psychometric assessment reports.
2.2 Your right to access and use our Platform is provided on a non-exclusive, world-wide, limited-time, non-transferable basis and subject to the Services Agreement. We grant you a perpetual, royalty-free license to use your Profiles for your personal use only.
2.3 You acknowledge and accept that the quality and accuracy of your Profiles are dependent on the quality and accuracy of the User Data and User Account Data entered by you.
2.4 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 Account Data.
2.5 You acknowledge that TMS owns or licenses all Intellectual Property Rights in the Platform and anything developed or delivered under this User Agreement, including Profiles.
2.6 Nothing in this User Agreement should be construed as a transfer of ownership of User Data, User Account Data or Intellectual Property Rights.
3 YOUR USE OF THE PLATFORM
3.1 You undertake to us that you will:
(a) provide us with all necessary co-operation and will comply with all reasonable directions given by TMS in relation to this User Agreement and use of our Platform;
(b) fully comply with this User Agreement and only use the Platform in accordance with this User Agreement;
(c) only use the Platform in accordance with applicable laws and government regulations;
(d) comply with any reasonable directions provided by TMS in respect of downloading and using any updated versions of the Platform; and
(e) notify TMS and your Accredited Practitioner immediately on becoming aware of any unauthorised access to or use of your TMS account or compromise of your password.
3.2 You must not:
(a) without the prior written approval of TMS, disclose TMS’ Confidential Information;
(b) make the Platform available to any other person;
(c) share or disclose your login and authentication or password details with any other person;
(d) use the 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;
(e) attempt to gain unauthorised access to the Platform;
(f) interfere with or disrupt the integrity or performance of the Platform or the system or network from which access to the Platform is provided;
(g) use the Platform for any purpose except in accordance with this User Agreement;
(h) use the Platform in any way that could damage the reputation or goodwill of TMS, or the goodwill or other rights associated with the Platform;
(i) access or reproduce the Platform to create any derivative works or works which compete with the Platform, or permit any third party to do so;
(j) de-compile, disassemble or otherwise reverse engineer the Platform or permit any third party to do so;
(l) modify, remove or circumvent any markings, copyright or proprietary notices on, or security measures protecting, the Platform, or permit any third party to do so;
(l) modify the whole or any part of the Platform or combine or incorporate the whole or any part of Platform in any other programme or system without the prior written consent of TMS; or
(m) use the 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).
3.3 Third party facilities, including software programmes, may be necessary or appropriate for access to or use with the 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 User Agreement. You agree that TMS cannot control and will not be liable for the integrity, functionality, reliability, appropriateness or such facilities.
3.4 You shall be responsible for providing and maintaining your own User Access Facilities.
3.5 You acknowledge that:
(a) a Third Party Service Provider may host the Platform or it may be downloadable on third party platforms operated by the Third Party Service Provider;
(b) the hosting and availability of the Platform is subject to the service level agreement between TMS and the Third Party Service Provider;
(c) TMS is under no obligation to upgrade the Platform. TMS may update the functionality of the Platform and agree that, subject to TMS’ obligations under this User Agreement, TMS may make changes to the Platform, including its functionality at its sole discretion and without further notice to you; and
(d) TMS may require that you update any downloaded version of the Platform, as directed by TMS from time to time .
3.6 TMS will, at its sole discretion, from time to time, perform preventive or remedial maintenance on the Platform which may cause some or all of the 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.
3.7 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 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 Platform as soon as is practicable.
3.8 TMS does not warrant that the Platform 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 errors will be corrected.
3.9 You acknowledge that TMS may access and monitor usage of the Platform for the purposes of maintenance of the Platform and improving Services, including analysis of errors and installation of patches or upgrades and/or to verifying compliance with this User Agreement.
3.10 TMS may, without liability to you, immediately suspend all or any part of the Platform, and remove or disable access your account and or access to the Platform in the event that you contravene this clause, are otherwise are in breach of this User Agreement, or in the event that TMS exercises its right to do so under any applicable Services Agreement.
4 PRIVACY
4.1 In our engagement with you and in performing our obligations under this User Agreement, we will comply with our privacy policies and with any applicable privacy or data protection laws in force from time to time.
4.2 TMS’ privacy policies are available upon request or available on the Platform. TMS’ 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 Account Data and the Profiles.
4.3 You warrant to TMS that you are authorised to provide to us, distribute and release User Data and User Account Data, and you are not breaching any applicable data privacy rule or regulations, any contractual obligations, or TMS’ privacy policies by uploading, disclosing, distributing and releasing User Data or User Account Data on the Platform.
4.4 You acknowledge and accept that subject to our privacy policies:
(a) the Profiles, User Data and User Account Data are to be shared with, and provided to your Accredited Practitioner or any authorised Administrators and that the Accredited Practitioner or Administrator may share your Profile, User Data and User Account Data with third parties including your colleagues;
(b) that any Accredited Practitioners and Administrators who have been provided with the Profiles, User Data and User Account Data may generate group reports (which are not de-identified) using the information, and may share the group reports with third parties including your colleagues;
(c) that we may share your Profiles, User Data and User Account Data within our related companies and with our Client;
(d) we may disclose that information to external service providers so that they may perform services for us or on our behalf; and
(e) we will not, without your approval, disclose your Confidential Information to any other person.
5 INDEMNIFICATION, LIMITATION OF LIABILITY AND WARRANTY
5.1 Subject to clause 5.2, 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 User Agreement (including without limitation a breach of any warranty contained in it) by you; (b) misuse of the Platform by you; (c) any infringement by you of the Intellectual Property Rights or privacy rights of a third party; and (d) any wilful, unlawful or negligent act or omission by you.
5.2 TMS is not liable under this User Agreement for circumstances for which it is not responsible, including, without limitation: (a) Force Majeure events; (b) non-compliance with the provisions of this User Agreement; (c) unauthorised modifications to or interference with the Platform by you or third parties; (d) errors in the operation of the Platform by you or third parties; (e) influences from systems or programmes that have been provided by third parties; (f) a modification of the Platform by anyone other than TMS; (g) your use of the Platform in a manner contrary to the instructions given to you by TMS; or (h) your use of the Platform after notice of the alleged or actual infringement from TMS or any appropriate authority.
5.3 To the extent permitted by law, TMS’ total liability to you for all losses or damages arising directly or indirectly as a result of TMS’ performance or non performance of its obligations under this User Agreement is limited, at TMS’ sole discretion, to one of the following:(a) resupply of access to the Services or questionnaires; (b) repair of the Platform; or (c) terminate this User Agreement and refund to the Accredited Practitioner of fees paid to TMS by the Accredited Practitioner for your use of the Platform.
5.4 In the event that any refund is provided under clause 5.3, due to TMS’ non-performance, the refund will be limited to the duration of any non-performance.
5.5 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 User Agreement or from a breach of any of the warranties, terms, conditions or any other provision of this User Agreement or from negligence or breach of statutory duty or otherwise.
5.6 Except as provided in this User Agreement and to the extent permitted by law, all conditions and warranties concerning TMS’ performance of the 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.
5.7 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 Platform.
5.8 Each party warrants to the other that it has the right and ability to enter into this User Agreement and that this User Agreement will be legally binding on it.
5.9 Except as expressly and specifically provided in this User Agreement and to the extent available at law: (a) you assume sole responsibility for results obtained from the use of the Platform by you, and the Profiles 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 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 User Agreement; and;(d) the Platform is provided to you on an “as is” basis.
5.10 You warrant that you have not relied on any representation made by TMS which has not been stated expressly in this User Agreement, or upon any descriptions, illustrations or specifications in any way relating to the Platform. You acknowledge that to the extent TMS has made any representation which is not otherwise expressly stated in this User Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.
5.11 This clause survives termination of this User Agreement by either party for any reason.
6 FORCE MAJEURE
6.1 TMS shall not be liable for any delay or failure to perform its obligations under this User Agreement if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, TMS’ 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 User Agreement on providing notice in writing to you.
6.2 If this User Agreement is terminated pursuant to clause 6.1, TMS is not liable to refund any moneys paid by you pursuant to this User Agreement.
7 GENERAL
7.1 This User Agreement supersedes all prior User Agreements.
7.2 Any dispute arising in connection with this User 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.
7.3 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
7.4 This User Agreement will be governed by and construed according to Queensland law.
8 DEFINITIONS
8.1 In this User Agreement, unless the contrary intention appears:
“Accredited Practitioners” means those who work for our Clients or with Respondents in connection with our Services, data subjects and Profiles.
"Administrators” means Users who have administrator privileges on the Platform.
“Client” means our customer who has engaged us to allow you access to the Platform.
“Confidential Information” means in the case of the User, User Data and Profiles, and in the case of TMS includes: a) all information treated by TMS as being confidential; b) information relating to the Platform or Questionnaires; 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 Platform is being provided to you pursuant to this User 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 User 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.
“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.
“Platform” means the electronic access point and any applications, tools or associated websites provided by TMS for the provision of the Services.
“Profile” means the reports generated through a Respondent’s completion of the Questionnaires.
“Questionnaires” means the questions posed to Respondents on the Platform.
“Respondents” means the officers, employees, agents or independent contractors of the Client who are authorised by the Client to use the Services to generate Profiles.
“Services” means the services provided by TMS from time to time, including the provision of access to the Platform for the purposes of generating, reviewing and using Profiles, and reporting services.
“Services Agreement” means the agreement we have with you, our client or your Accredited Practitioner in respect of the provision of Services to you on our Platform.
“Third Party Service Provider” means the person engaged by TMS to host the Platform or make the Platform available for download.
“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 User Agreement.
“User Account Data” means your account information which you input or upload onto the Platform being your name, email address, job title and about me information.
“User Agreement” means this agreement.
“User Data” means the data inputted or uploaded by you onto the Platform, such as your responses to Questionnaires, but excludes User Account Data.
“User” means users of the Platform.
9 INTERPRETATION
9.1 In this User 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 User 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) monetary references are references to Australian currency.