PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR WEBSITE
CAREFULLY.
By using our Website, you agree to these Terms and Conditions of Use ("Terms & Conditions").
We reserve the right, in our sole discretion, to change, modify, add or remove portions
of these Terms & Conditions at any time. You should check these Terms & Conditions
periodically for changes. By using this Website after we post any changes to these
Terms & Conditions, you agree to accept those changes, whether or not you have reviewed
them. If you do not agree to these Terms & Conditions, you should not use our Website
and, if applicable, you should arrange to cancel your community user account(s)
or subscription with us.
1. Scope of Terms & Conditions
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. Terms & Conditions - In General
By using this Website, you agree to be legally bound and to abide by these Terms
& Conditions, just as if you had signed an agreement containing these Terms & Conditions.
If you do not comply with these Terms & Conditions at any time, we reserve the right,
if applicable, to cancel or terminate your password, user account, and/or access
to this Website (or any part thereof). In our sole discretion and without prior
notice or liability, we may discontinue, modify or alter any aspect of the Website,
including, but not limited to, (i) restricting the time the Website is available,
(ii) restricting the amount of use permitted, and (iii) restricting or terminating
any user's right to use the Website. You agree that any termination or cancellation
of your access to, or use of, the Website may be effected without prior notice to
you. If you do not abide by the provisions of these Terms & Conditions, except as
we may otherwise provide from time to time, you agree that we may immediately deactivate
or delete your user account and/or all related information and files in your user
account and/or bar any further access by you to such information and/or files, or
our Website (or part thereof). 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. From time to time, we may supplement these Terms & Conditions
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 these Terms & Conditions.
3. Restrictions on Use of Materials
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 for
your personal, non-commercial use, provided that you comply fully with the provisions
of these Terms & Conditions. 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. Our commercial partners, suppliers, advertisers,
sponsors, licensors, contractors and other third parties may also have additional
proprietary rights in the Content which they make available on this Website. 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.
4. Becoming a Community User
There is no cost to become a community user of our Website. You do not have to become
a community user to use this Website. However, if you do not register, you may be
precluded from using certain products, offerings, features, or resources of our
Website. If you elect to become a community user of our Website, you agree to provide
us with true, accurate and complete information about yourself ("Community User
Data"), and to maintain and promptly update the Community User Data to keep it accurate.
Without limiting any other provision of these Terms & Conditions, 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 and refuse any and all current or future use of our Website (or
any portion thereof). You agree not to assign, transfer or sublicense your rights
as a community user of this Website.
5. Privacy and Security
We are committed to protecting your privacy and security. For more information,
you should review our
Privacy Policy,
which is incorporated into these Terms & Conditions by this reference. You consent
to the collection and use of personally identifiable information about you in accordance
with the
Privacy Policy.
6. 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, on or through 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, on or through this Website. We do not control the Postings of others
and, as such, you agree that we have no responsibility for 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.
Except for Postings created by us (as to which you agree that liability shall rest
with the entity which created the relevant Content and shall be governed by these
Terms & Conditions), under no circumstances will we be liable in any way for any
Postings, 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 access to or use
of any Postings posted, emailed or otherwise transmitted to, on or through this
Website.
You agree not to use this Website to do, or attempt to do, any of the following
(as to which you agree to accept us as sole arbiter in our absolute discretion):
a. upload, post, email or otherwise transmit any Postings or other materials that
are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar,
obscene, libelous, defamatory, invasive of another's privacy, hateful, or racially,
ethnically, religiously, sexually or otherwise objectionable;
b. harm, wrongly 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
an affiliation with us 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, on 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 non-disclosure agreements);
f. upload, post, email or otherwise transmit any Postings or other materials that
infringe upon any patent, trademark, trade secret, moral right, 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
or promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes,"
or any other form of commercial solicitation or promotion, 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, limit or divert 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 law and/or regulations
having the force of law;
l. "stalk" or otherwise harass another user of this Website or 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
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 Forum.
All communications, including, but not limited to, chat and message board communications,
are public and not private communications. We reserve the right to monitor any areas
of this Website (including any Forum) for adherence to the community standards and
conduct guidelines set forth above or for any other purpose, but you agree we have
no obligation or duty to do so and release us from any such obligation or duty.
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 Forum. Although we reserve the right to remove, without notice, any Forum
posting for any reason, we have no obligation to delete Postings that you may find
objectionable or offensive.
7. 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 Forum) (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 limitation of the foregoing, you grant
us and our successors and assigns (despite any moral rights you may have, which
you hereby waive) a royalty-free, perpetual, irrevocable, non-exclusive right and
license (as well as consent) 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, trademarks 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.
8. Links
These Terms & Conditions apply 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.
9. 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.
10. Your Password and User Account
If you are a community user or subscriber of this Website, 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. You are
entirely responsible for any and all activities which occur under your user account.
You agree to immediately notify us of any unauthorised use of your user account
or any other breach of security known to you.
14. Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS ON THIS WEBSITE ARE PROVIDED "AS
IS" AND, TO THE EXTENT PERMITTED BY LAW, 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 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 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.
NEITHER TECHMARK SOFTWARE PTY LTD, 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 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 THESE TERMS & CONDITIONS.
16. 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; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL
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; (D) UNAUTHORISED ACCESS TO OR ALTERATION
OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR
WEBSITE; OR (F) ANY OTHER MATTER RELATING TO OUR WEBSITE. WHERE YOUR LOSS IS NOT
OR CANNOT BE EXCLUDED BY THESE TERMS AND CONDITIONS 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
b. OUR LIABILITY IN RELATION TO ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY RELATED
TO ANY WARRANTY OR CONDITION WHICH IS NOT EXCLUDED BY THESE TERMS AND CONDITIONS
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 WITH ANY OF THESE TERMS
& CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE
OF THIS WEBSITE.
17. 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 lawyers' fees and expenses) arising from your improper
use of this Website or our products or offerings, your violation of these Terms
& Conditions, 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.
18. Governing Law and Choice of Forum
These Terms & Conditions 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 or these Terms & Conditions 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.
19. Miscellaneous Terms
In any action against us arising from the use of this Website, 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 lawyer'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. These Terms & Conditions,
together with other documents incorporated by reference and the
Subscription Agreement (if applicable), are the entire agreement
between you and us relating to the subject matter herein. If you are a subscriber
to one of our online subscription offerings or products, in the event of any conflict
between these Terms & Conditions and the
Subscription Agreement, the
Subscription Agreement shall control. These Terms & Conditions may be
modified only by our posting of changes to these Terms & Conditions on this Website,
or by written agreement between you and BusinessSystemsManager.com. Each time you
access this Website, you will be deemed to have accepted any such changes. We may
assign our rights and obligations under these Terms & Conditions. These Terms &
Conditions 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 to any provision of these Terms & Conditions, or to exercise
any right under the Terms & Conditions, will not be construed as a waiver or relinquishment
to any extent of such party's right to assert or rely upon any such provision or
right in that or any other instance; rather, the same will be and remain in full
force and effect.
(Last modified as of November 8, 2006)