PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR WEBSITE
AND OUR FEE-BASED PRODUCTS AND OFFERINGS CAREFULLY.
By using our Website and/or one of our online fee-based products or offerings (collectively,
our "Fee-Based Products"), you agree to the terms and conditions set forth in this
Subscription Agreement (this "Agreement"). We reserve the right, in our sole discretion,
to change, modify, add or remove provisions of this Agreement at any time. You should
check this Agreement periodically for changes. By using this Website or our Fee-Based
Products after we post any changes to this Agreement or otherwise notify you of
such changes, you agree to accept those changes, whether or not you have reviewed
them. If you do not agree to this Agreement, you should not use our Website and/or
our Fee-Based Products and you should arrange to cancel your community user account
or subscription with us, as applicable.
1. Scope of Agreement
Unless we indicate otherwise, this Agreement applies to your use of the websites
which are owned or operated by Techmark Software Pty Ltd (A.B.N. 50 088 440 224)
("BusinessSystemsManager.com") and our Affiliates (collectively, "we", "us" or "our"),
including, without limitation, this website and any other website that we may own
or operate currently or in the future (collectively, our "Website") and all of the
Fee-Based Products that we may offer currently or in the future. For purposes of
this Agreement, "Affiliates" shall mean any entity or person, directly or indirectly,
owning a controlling interest in, owned by, or under common ownership control with,
BusinessSystemsManager.com, including, without limitation, Techmark Software Pty
Ltd ("BusinessSystemsManager.com") and any subsidiaries and affiliates.
2. Your Use of this Website and Our Fee-Based Products
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited
right to access, use and display this Website and the material provided hereon,
and the Fee-Based Products that you subscribed to, for your personal, non-commercial
use, provided that you comply fully with the provisions of this Agreement. You agree
not to assign, transfer or sublicense your rights as a community user of, or subscriber
to, this Website and/or our Fee-Based Products. You understand that only you may
use your user account and password, and that your subscription to our Fee-Based
Products is only valid for your personal, non-commercial use and may not be shared
with others. You agree to be financially responsible for all usage or activity of
Fee-Based Products subscribed to by you.
By using this Website and/or our Fee-Based Products, you agree to be legally bound
and to abide by this Agreement. If you do not comply with this Agreement at any
time, we reserve the right to cancel or terminate your password, user account, and/or
access to this Website (or any part thereof) and/or our Fee-Based Products. In our
sole discretion and without prior notice or liability, we may discontinue, modify
or alter any aspect of the Website or our Fee-Based Products, including, but not
limited to, (i) restricting the time the Website and/or a Fee-Based Product is available,
(ii) restricting the amount of use permitted, and (iii) restricting or terminating
any user's right to use the Website and/or any of our Fee-Based Products. You agree
that any termination or cancellation of your access to, or use of, the Website and/or
our Fee-Based Products may be effected without prior notice to you.
If you do not abide by the terms of this Agreement, except as we may otherwise provide
from time to time, you agree that we may immediately deactivate or delete your user
account and all related information and/or files in your user account and/or bar
any further access by you to such information and/or files, our Website (or part
thereof) and/or our Fee-Based Products. Further, you agree that we shall not be
liable to you or any third-party for any termination or cancellation of your access
to, or use of, our Website and/or our Fee-Based Products, except for a refund of
any fees or charges prepaid by you with respect to our Fee-Based Products in accordance
with paragraph 4 of this Agreement. You acknowledge that your only right with respect
to any dissatisfaction with any modification or discontinuation of service made
by us pursuant to this provision or this Agreement, or any policies or practices
by us in providing this Website or our Fee-Based Products, including without limitation
any change in content or any change in the amount or type of fees or charges associated
with the Fee-Based Products, is to cancel or terminate your subscription or community
user account, as applicable.
From time to time, we may supplement this Agreement with additional terms and conditions
pertaining to specific content, activities or events ("Additional Terms"). Such
Additional Terms may be placed on the Website to be viewed in connection with the
specific content, activities, features or events and shall be identified as such.
You understand and agree that any such Additional Terms are hereby incorporated
by reference into this Agreement.
3. Charges and Fees for Fee-Based Products
Certain portions, components, content and features of this Website are only available
to individuals who purchase a subscription to one of our Fee-Based Products. As
a subscriber to one of our Fee-Based Products, you agree as follows:
A. You agree to pay, using a valid credit card (or other form of payment which we
may accept from time to time), the fixed and periodic charges and fees set forth
on this Website (such as the recurring Monthly Fee), applicable taxes, and other
charges and fees incurred in order to access our Fee-Based Products. We reserve
the right to increase charges and fees, or to institute new charges or fees at any
time, upon reasonable advance notice communicated to you through a posting on this
Website or such other means as we may deem appropriate from time to time (including
electronic mail or conventional mail).
We will automatically charge your credit card or other account at the start of each
renewal period, unless you terminate or cancel your subscription before the relevant
renewal period begins. Except in the case of a multiple-period prepayment plan or
if you were eligible for a discounted rate but are no longer eligible for that rate,
the renewal charge will be the same as the prior period's charge, unless we notify
you in advance at the time of sign up or prior to the beginning of the renewal period
as described above. Each time you use our Fee-Based Products you reaffirm your agreement
that we may charge your credit card (or other form of payment, if applicable). In
the event we cannot charge your account, we reserve the right to terminate your
access to our Fee-Based Products.
B. All fixed and periodic charges and fees for our Fee-Based Products are quoted
in various currencies (including Australian, United Kingdom or United States of
America dollars/pounds and are inclusive of any applicable GST, except where otherwise
stated). Your periodic charges may vary depending on exchange rates.
C. In addition to the fees and charges set forth above, you are responsible for
all charges and fees associated with connecting to our Website and our Fee-Based
Products, including without limitation all telephone access lines (including long-distance
charges, when applicable), internet service provider fees, telephone and computer
equipment, sales taxes and any other fees and charges necessary to access our Fee-Based
Products. In addition, in some counties, your credit card issuer may impose a foreign
exchange transaction fee each time we charge you for our Fee-Based Products.
D. For the purposes of your use of our Fee-Based Products, including identification
and billing, you agree to provide us with true, accurate and complete information
as required by the subscription or sign up process to our Fee-Based Products ("Subscription
Data"), including your legal name, address, telephone number, email address and
applicable billing information (e.g., credit card number and expiration date), and
to allow us to share your Subscription Data with third parties for the purpose of
verifying the information you provide and billing your credit card or otherwise
charging your account. You agree to maintain and promptly update the Subscription
Data to keep it accurate at all times. Without limiting any other provision of this
Agreement, if you provide any information that is untrue, inaccurate, or incomplete,
or we have reasonable grounds to suspect that such is the case, we reserve the right
to suspend or terminate your user account or subscription and refuse any and all
current or future use by you of our Website (or any portion thereof) or any of our
Fee-Based Products. You are obligated to check your Subscription Data is current
and accurate, and, if not, to correct or update your Subscription Data including
your billing information.
E. You are entirely responsible for maintaining the confidentiality of your password
and user account information. You must notify us immediately in the event of any
known or suspected unauthorised use of your user account, or any known or suspected
breach of security, including loss, theft, or unauthorised disclosure of your or
anyone else's password or credit card information. In the event of a breach of security
by you, you will remain liable for any unauthorised use of your subscription until
you update your Subscription Data. If your credit card expires, is cancelled, is
lost or is subject to use without your authorisation, access your PayPal account
to manage your credit card data or contact BusinessSystemsManager.com. You are entirely
responsible for any and all activities which occur under your user account. You
are responsible for paying any amounts billed to your credit card by a third party
which were not authorised by you.
F. If we terminate your subscription to one of our Fee-Based Products prior to the
end of the applicable period, you agree that all fees and charges assessed by us
are non-refundable. Non-refundable fees include the full Monthly Fee for any month
(or portion thereof) elapsed (regardless of whether you used the Fee-Based Product
during that month). If you subscribe to a prepayment plan for multiple periods (e.g,
a 3-month prepayment plan) and you decide to cancel during such prepayment period,
we will refund you the difference, if any, between the amount you paid and the amount
you would have incurred if you were subject to our standard pricing in effect during
such time and not subject to our special pricing offered through any prepayment
plan. If we cancel or terminate your subscription to one of our Fee-Based Products
(as opposed to you cancelling your subscription) prior to the end of a period for
which you have incurred a charge, we will refund any unused portion of such period
on a pro rata basis. If you receive a refund to your credit card, due to exchange
rate fluctuations the amount refunded in your nation’s Dollars may be either more
or less than the amount originally charged.
4. Cancellation of Subscription
Either you or BusinessSystemsManager.com may terminate or cancel your subscription
to our Fee-Based Products at any time. You understand and agree that the cancellation
or termination of your subscription is your sole right and remedy with respect to
any dispute with us including, without limitation, any dispute related to, or arising
out of: (i) any terms of this Agreement or our enforcement or application of this
Agreement; (ii) any practice or policy of BusinessSystemsManager.com, including
our Website Terms & Conditions of Use and Privacy Policy, or our enforcement or
application of these policies; (iii) the content available through this Website
or any change in content provided through the Website or on a Fee-Based Product;
(iv) your ability to access and/or use our Website or any Fee-Based Product; or
(v) the amount or types of our fees or charges, surcharges, applicable taxes, or
billing methods, or any change to our fees or charges, applicable taxes, or billing
methods. Upon cancellation or termination of your subscription to our Fee-Based
Products, we may immediately deactivate your user account and all related information
and/or files in your user account and/or bar any further access to such information
and/or files, our Website (or part thereof) and/or our Fee-Based Products, except
as we may otherwise provide from time to time.
You can cancel your subscription by clicking on the unsubscribe button on our website
or by such other means as we may provide from time to time. We will attempt to process
all cancellation requests within 72 hours after we receive your request. If you
cancel near the end of your billing period and are inadvertently charged for the
next period's fee, contact
support@businesssystemsmanager.com
to have the charges reversed. If you use our Fee-Based Product during that next
period, you will be deemed not to have cancelled the subscription and therefore
will not be entitled to a refund for that cancellation. We reserve the right to
collect fees, surcharges, or costs incurred before your cancellation takes effect.
5. Availability of Fee-Based Products
The availability and use of our Fee-Based Products may be limited based on demographic,
geographic or other criteria as we may establish from time to time. You understand
and agree we may disallow you from subscribing to our Fee-Based Products or may
terminate your subscription to our Fee-Based Products at any time based on these
criteria.
6. Privacy and Security
We are committed to protecting your privacy and security in accordance with our
Privacy Policy, which is incorporated
into this Agreement by this reference.
You consent to the collection and use of personally identifiable information about
you in accordance with the
Privacy Policy.
7. Automatically Become a Community User
As a subscriber to one of our Fee-Based Products, you automatically become a community
user of this Website, which provides you with access to certain products, offerings,
features, or resources of our Website. If you cancel your subscription to our Fee-Based
Products, you will remain a community user of our Website unless you specifically
request otherwise.
8. Restrictions on Use of Materials
You acknowledge that this Website contains information, software, photos, video,
text, graphics, music, sounds, questions, creative suggestions, messages, comments,
feedback, ideas, notes, drawings, articles and other materials (collectively, "Content")
that are protected by copyrights and/or other proprietary rights, and that these
rights are valid and protected in all forms, media and technologies existing now
or hereafter developed. You may not modify, publish, transmit, distribute, perform,
participate in the transfer or sale of, create derivative works of, or in any way
exploit, any of the Content, in whole or in part. When Content is downloaded to
your computer, you do not obtain any ownership interest in such Content. Modification
of the Content or use of the Content for any other purpose, including, but not limited
to, use of any Content in printed form or on any other website or networked computer
environment is strictly prohibited unless you receive our prior written consent.
9. Community Standards and Conduct Guidelines
You acknowledge that all Content and all information, software, photos, video, text,
graphics, music, sounds, questions, creative suggestions, messages, comments, feedback,
ideas, notes, drawings, articles and other materials posted, emailed, or otherwise
transmitted to or on this Website, whether posted at our request or voluntarily,
and whether publicly posted or privately transmitted (collectively, the "Postings"),
are the sole responsibility of the person who made such Postings. This means that
you are entirely responsible for all Postings that you post, email or otherwise
transmit to this Website. We do not control the Postings posted, emailed or otherwise
transmitted on our Website by others and, as such, we do not guarantee the accuracy,
integrity or quality of such Postings. Although we have adopted community standards
and conduct guidelines for the users of our Website (as described below), you understand
that by using this Website, you may be exposed to Postings that are offensive or
objectionable. Under no circumstances will we be liable in any way for any Postings
(other than for Content developed by us or our Affiliates), including, but not limited
to, for any errors or omissions in any Postings, or for any loss or damage of any
kind incurred as a result of the use of any Postings posted, emailed or otherwise
transmitted to or through this Website.
a. Upload, post, email or otherwise transmit any Postings or other materials that
are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar,
obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically
or otherwise objectionable (in our sole discretion);
b. Harm, wrongfully influence or threaten children in any way;
c. Impersonate any person or entity, including, but not limited to, a director,
officer, employee, shareholder, agent or representative of BusinessSystemsManager.com,
our Affiliates or any other person or entity, or falsely state or otherwise misrepresent
your affiliation with BusinessSystemsManager.com, our Affiliates or any other person
or entity;
d. Forge headers or otherwise manipulate identifiers in order to disguise the origin
of any Postings or other materials transmitted to or through this Website;
e. Upload, post, email or otherwise transmit any Postings or other materials that
you do not have a right to upload, post, email or otherwise transmit under any law
or under contractual or fiduciary relationships (such as insider information, proprietary
and confidential information learned or disclosed as part of employment relationships
or under nondisclosure agreements);
f. Upload, post, email or otherwise transmit any Postings or other materials that
infringe upon any patent, trade mark, trade secret, copyright, right of privacy
or publicity or other proprietary rights of any party;
g. Upload, post, email or otherwise transmit any unsolicited or unauthorised advertising,
promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes,"
or any other form of commercial solicitation, except in those areas, if any, that
are specifically designated for such purpose;
h. Upload, post, email or otherwise transmit any Postings or other materials that
contain 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;
i. Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other
users of a Forum (or other portion of this Website) are able to type, or otherwise
act in a manner that negatively affects other users' ability to use any Forum;
j. Interfere with or disrupt this Website or servers or networks connected to this
Website, or disobey any requirements, procedures, policies or regulations of networks
connected to the Website;
k. Intentionally or unintentionally violate any applicable local, state, national
or international law, including, but not limited to, any regulations having the
force of law;
l. "Stalk" or otherwise harass another user of this Website or an employee of BusinessSystemsManager.com
or any of our Affiliates; or
m. Collect or store personal data or attempt to collect or store personal data about
other users of the Website.
Your privilege to use this Website (including the Blog) and contribute to discussions
on the Blog depends on your compliance with the community standards and conduct
guidelines set forth above. We may revoke your privileges to use all or a portion
of this Website and/or take any other appropriate measures to enforce these community
standards and conduct guidelines if violations are brought to our attention. Further,
if you fail to adhere to our community standards and conduct guidelines, we may
terminate, in our sole discretion, your use of, or participation in, any Blog.
All Blog communications, including, but not limited to, chat and message board communications,
are public and not private communications. We reserve the right to monitor some,
all, or no areas of this Website (including any Forum) for adherence to the community
standards and conduct guidelines set forth above or for any other purpose. You acknowledge
that by providing you with the ability to distribute Postings in the Forums, we
are acting as a passive conduit for such distribution and we are not undertaking
any obligation or liability relating to any Postings or activities in any Blog.
Although we reserve the right to remove, without notice, any Blog posting for any
reason, we have no obligation to delete Postings that you may find objectionable
or offensive.
10. Submissions
If, at our request or on your own, you send, email, post or otherwise transmit to
us or this Website information, software, photos, video, text, graphics, music,
sounds, questions, creative suggestions, messages, comments, feedback, ideas, notes,
drawings, articles, stories about yourself or your business, or other materials
(including, but not limited to, posting, emailing, or otherwise transmitting Postings
on any Blog) (collectively, the "Submissions"), the Submissions shall be deemed,
and shall remain, our property. Except as provided in our Privacy Policy, none of
the Submissions shall be subject to any obligation of confidence on our part, and
we shall not be liable for any use or disclosure of any Submissions.
Without limiting the foregoing, you grant us and our successors and assigns a royalty-free,
perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify,
adapt, publish, translate, create derivative works from, distribute, communicate
to the public, perform, enter into commercial rental arrangements in respect of
and display any Submissions (in whole or in part and with or without the use of
your name) worldwide and/or to incorporate the Submissions in other works in any
form, media, or technology now known or later developed, for the full term of any
copyrights, trade marks and other intellectual, personal and proprietary rights
(collectively, the "Rights") that may exist in such Submissions.
You also hereby irrevocably and unconditionally consent, to the fullest extent permitted
by law (either present or future), to us or any person authorised by us, using,
disclosing, reproducing, copying, adapting, publishing, performing, exhibiting,
communicating or transmitting the Submissions or any adaptation of the Submissions
(or any part of the Submissions or of any such adaptation) anywhere in the world
(a) in whatever form and in whatever circumstances we think fit, including the making
of any distortions, additions or alterations to the Submissions or any adaptation
of the Submissions (or any part of the Submissions or of such adaptation) and (b)
without making any identification of you in relation to them.
You also warrant that: (i) you own or otherwise control all of the rights in or
to your Submissions including, without limitation, all the rights necessary for
you to send, email, post or otherwise transmit to us the Submissions; (ii) any third
party holder of any Rights, including moral rights in such Submissions, has validly
and irrevocably granted to you the right to grant the licence stated above; and
(iii) each person depicted in any images, photos and/or videos contained in your
Submissions (if any) has consented to the use of such images, photos and/or videos
in accordance with the above licence. You further acknowledge that we and our successors
and assigns shall be entitled to unrestricted use of the Submissions for any purpose
whatsoever, commercial or otherwise, without compensation to the provider of the
Submissions or any third party holder of any Rights.
11. Links
This Agreement applies only to this Website, and not to the websites of any other
person or entity. We may provide, or third parties may provide, links to other websites
or resources. You acknowledge and agree that we are not responsible for the availability
of such external sites or resources, and do not endorse (and are not responsible
or liable for) any content, advertising, products, or other materials, goods or
services on or available from such websites or resources. You further acknowledge
and agree that, under no circumstances, will we be held responsible or liable, directly
or indirectly, for any loss or damage that is caused or alleged to have been caused
to you in connection with your use of, or reliance on, any content, advertisements,
products or other resources, goods or services available on any other website (regardless
of whether we directly or indirectly link to such content, advertisements, products
or other resources). You should direct any concerns with respect to any other website
to that website's administrator or webmaster.
12. Third Party Products and Services
You may order services, merchandise or other products through our Website from other
parties (collectively, the "Third Party Sellers"). All matters concerning the services,
merchandise and other products promoted by or available from the Third Party Sellers,
including, but not limited to, purchase terms, payment terms, warranties, guarantees,
maintenance and delivery, are solely between you and the Third Party Sellers. We
make no warranties or representations whatsoever with regard to any services, merchandise
and other products provided by the Third Party Sellers. You will not consider us
(and we will not be construed as) a party to such transactions, whether or not we
may have received some form of revenue or other remuneration in connection with
such transactions, and we will not be liable to you or any other person for any
costs or damages arising out of or relating to, either directly or indirectly, such
transactions.
13. Copyright Complaints
We respect the intellectual property of others, and we ask our users to do the same.
We may, in appropriate circumstances and in our discretion, terminate the rights
of any user to use our Website (or any part thereof) who infringe the intellectual
property rights of others. If you believe that your work has been copied in a way
that constitutes copyright infringement or are aware of someone doing so, please
contact
Info@BusinessSystemsManager.com
for notice of claims of copyright infringement.
14. Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE
FEE-BASED PRODUCTS) ON THIS WEBSITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER TECHMARK SOFTWARE PTY LTD, BUSINESSSYSTEMSMANAGER.COM, ANY OF OUR AFFILIATES,
NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS
WARRANT THAT THIS WEBSITE OR ANY FUNCTION CONTAINED IN THIS WEBSITE WILL BE UNINTERRUPTED
OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEBSITE OR THE SERVERS
THAT MAKE THIS WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY PRODUCT, OFFERING, CONTENT AND MATERIAL (INCLUDING, WITHOUT LIMITATION, THE
FEE-BASED PRODUCTS) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS WEBSITE
IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT,
OFFERING, CONTENT OR MATERIAL (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS).
NEITHER TECHMARK SOFTWARE PTY LTD, BUSINESSSYSTEMSMANAGER.COM, ANY OF OUR AFFILIATES,
NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE
OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION,
THE FEE-BASED PRODUCTS) IN THIS WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE.
NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THIS WEBSITE
SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
15. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE
FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, OR FOR ANY DAMAGES FOR LOSS OF PROFITS,
GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM: (A) THE USE
OR THE INABILITY TO USE THIS WEBSITE (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED
PRODUCTS); (B) THE USE OF ANY CONTENT OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION,
THE FEE-BASED PRODUCTS) ON THIS WEBSITE OR ANY WEBSITE OR WEBSITES LINKED TO THIS
WEBSITE; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING
FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES
RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THIS WEBSITE (INCLUDING, WITHOUT
LIMITATION, THE FEE-BASED PRODUCTS); (D) UNAUTHORISED ACCESS TO OR ALTERATION OF
YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR
WEBSITE (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS); OR (F) ANY OTHER
MATTER RELATING TO OUR WEBSITE. WHERE YOUR LOSS IS NOT OR CANNOT BY LAW BE EXCLUDED
BY THIS AGREEMENT THEN:
a. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES
OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE),
OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR WEBSITE AND
OUR FEE-BASED PRODUCTS; AND
b. OUR LIABILITY IN RELATION TO ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY RELATED
TO ANY WARRANTY OR CONDITION WHICH IS NOT EXCLUDED BY THIS AGREEMENT IS LIMITED
TO, AT OUR ELECTION:
1. IN THE CASE OF GOODS, ANY ONE OR MORE OF THE FOLLOWING: (A) THE REPLACEMENT OF
THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; (B) THE REPAIR OF THE GOODS; (C) THE
PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR
(D) THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR
2. IN THE CASE OF SERVICES: (A) THE SUPPLYING OF THE SERVICES AGAIN; OR (B) THE
PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR WEBSITE OR ANY OF OUR FEE-BASED
PRODUCTS, OR WITH ANY OF THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY
IS THE DISCONTINUATION OF YOUR USE OF THIS WEBSITE AND OUR FEE-BASED PRODUCTS.
16. Indemnification
You agree to indemnify, hold harmless and, at our option, defend us and our Affiliates,
and our and their officers, directors, employees, stockholders, agents and representatives
from any and all third party claims, liability, damages and/or costs (including,
but not limited to, reasonable attorneys fees and expenses) arising from your improper
use of this Website or our products or offerings (including, without limitation,
the Fee-Based Products), your violation of this Agreement, or your infringement,
or the infringement or use by any other user of your account, of any intellectual
property or other right of any person or entity.
17. Governing Law and Choice of Forum
This Agreement shall be governed by and construed in accordance with the laws of
the Australian state of New South Wales, without giving effect to any principles
of conflicts of law. You agree that any action at law or in equity arising out of
or relating to your use of this Website (including, without limitation, the Fee-Based
Products) or this Agreement shall be filed only in the state or federal courts located
in New South Wales and you hereby consent and submit to the personal jurisdiction
of such courts for the purposes of litigating any such action.
18. Miscellaneous Terms
In any action against us arising from the use of this Website (including, without
limitation, the Fee-Based Products), the prevailing party shall be entitled to recover
all legal expenses incurred in connection with the action, including but not limited
to its costs, both taxable and non-taxable, and reasonable attorney's fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable,
then that provision shall be deemed severable from these terms and shall not affect
the validity and enforceability of any remaining provisions. This Agreement, together
with the Website
Terms & Conditions
of Use (if applicable), the
Privacy Policy
and any Additional Terms, are the entire agreement between you and us relating to
the subject matter herein. In the event of any conflict between this Agreement and
the
Terms & Conditions of
Use, this Agreement shall control. This Agreement may be modified only by our posting
of changes to this Agreement on this Website, or by written agreement of both parties.
Each time you access this Website, you will be deemed to have accepted any such
changes.
We may assign our rights and obligations under this Agreement. This Agreement will
inure to the benefit of our successors, assigns and licensees. The failure of either
party to insist upon or enforce the strict performance of the other party with respect
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rather, the same will be and remain in full force and effect.
(Last modified on November 8 2006)