The ExperienceBank terms of service
Welcome to “The ExperienceBank”, an online networking subscription service operated by The ExperienceBank Pty Ltd (ACN 617 108 157) (“TEB”, “us”, “our” or “we”) at www.experiencebank.com.au (“Website”) which allows members in the business community, including business consultants, individuals, consultancy firms and service providers, to connect and communicate (the “Service”).
All persons that use or wish to use the Service (hereinafter referred to as a “User”, “you” or “your”) must register an account with us (“Account”). All Users must accept and comply with these terms and conditions which govern the use of the Service (the “Terms of Service”).
These Terms of Service create a binding, legal agreement between us and you. All Users who use the Service are deemed to have read, understood and agreed to be bound by these Terms of Service.
1. Definitions and interpretation
In these Terms of Service, unless the context otherwise requires or permits:
- (a) “Consultant” means an Individual who, either at the time of registering an Account with us or subsequently, nominates or indicates that he or she is or may be interested in providing business consulting services (not in his or her capacity as a member of a Consultancy Firm, although it is recognised that such an Individual may provide his or her services through a service company or trust) to Consultancy Firms seeking Consultants via the Service;
- (b) “Consultancy Firm” means a User who, either at the time of registering an Account with us or subsequently, nominates or indicates that they are a company, partnership or other legal entity that provides business consulting services to third parties and is seeking to engage Consultants via the Service to provide consulting services for the benefit of such third parties;
- (c) “Content” means all information, material, images, graphics, graphs, videos, cinematograph films, sound recordings, streamed content, artistic works, opinions, advice, reviews, discussions, ratings, comments, messages, tables, charts, statistics, reports, summaries, objects, logos, layouts, data and databases, indexes, hyperlinks, geo-location information, colour schemes and any other content of any kind and regardless of the form in which it is embodied;
- (d) “Individual” means a User who, either at the time of registering an Account with us or subsequently, nominates or indicates that he or she is an individual who is or may be interested in being a Consultant and/or is interested in obtaining services from a Service Provider via the Service;
- (e) “Intellectual Property Rights” means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction;
- (f) “Our Content” means all Content made available by us via the Service, whether directly or indirectly, but excluding any User Content and/or Third-Party Content;
- (g) “Personal Information” means information about an identified individual or an individual who is identifiable from such information;
- (i) “Service Provider” means a User who, either at the time of registering an Account with us or otherwise, nominates or indicates that he, she or they provide personal or professional development services for Individuals or Consultancy Firms, and who may also be a Consultant or a Consultancy Firm;
- (j) “Subscription Fees” means the fee(s) payable by a User to us for access to and use of the Service, including the User Features, such fee(s) being set out on the Website as varied from time to time;
- (k) “Subscription Term” means the subscription period during which the User is permitted to have access to and use of the Service, the length of which is determined by and referable to the Subscription Fees paid or payable by the User to TEB;
- (a) “Third-Party Content” means all other Content not being Our Content or User Content, including content sourced or imported from third party website via hyperlinks displayed or accessible via the Service.
- (l) “Usage Information” means any information or data relating to the use of the Service by a User, including meta-data or other usage data;
- (m) “User Content” means all Content, including any correspondence or communication, provided or uploaded by Users that is available via the Service;
- (n) “User Features” means any and all of the features and functionalities that are available to a User via the Service as may vary from time to time; and
- (o) “User Profile” means the profile established and maintained by a User when registering an Account (which may be updated by the User from time to time).
EFFECT OF TERMS
- 2.1 Users acknowledge that TEB provides the Service solely in accordance with these Terms of Service.
- 2.2 TEB may, from time to time at its sole and absolute discretion, revise these Terms of Service. TEB will post a notice on the Website and/or notify Users via email whenever it revises these Terms of Service (“Notice of Change”). If a User continues to use the Service and/or maintain their Account following a Notice of Change, that User is deemed to have accepted any revisions to these Terms of Service. Users are solely responsible for reviewing these Terms of Service.
3. NATURE OF THE SERVICE
- 3.1 Users acknowledge and agree that the Service and the purpose of the Service is to provide an online networking platform with the following primary attributes and User Features:
- (a) to create and upload a User Profile which may include details of that User, the business consultancy services they provide, their professional experience and/or the business consultancy services they require;
- (a) to upload and exchange User Content for the purpose of sharing with other Users;
- (b) to communicate, connect and network with other Users; and
- (c) to search for other Users.
- 3.2 Notwithstanding the matters in paragraph 3.1 above, Users acknowledge and accept that:
- (a) the Service is provided “as is” and is not tailored to the specific circumstances of a User;
- (b) TEB and the Service are not affiliated or associated with any User, and we do not endorse Users, nor are we an agent or representative of a User, nor is a User an agent or representative of TEB, however, TEB itself may also use the Service as a Consultancy Firm;
- (c) TEB and the Service does not guarantee or make any representations that Users will be able to enter into any business relationships, including contracts or agreements, with other Users via use of the Service;
- (d) we will under no circumstances be a party to any business relationships, including contracts or agreements, entered into between Users, whether or not such relationships are formed inside or outside the Service or via the assistance of the Service;
- (e) we are not in a position to review, verify or validate the credentials, identity, background details, skills, expertise or experience of a User and you must not rely on us to do this or assume that we have done this by reason of the fact that a User is able to use the Service or that we reserve any right to do this in any respect;
- (f) we have no control or influence over the conduct of Users outside these Terms of Service and we are not liable to a User to the extent that any other User breaches these Terms of Service;
- (g) the Service relies on the contribution, participation, self-discipline, integrity, good faith and honesty of the Users that use the Service;
- (h) the Service may offer differing functionalities and User Features to different Users; and
- (i) TEB does not offer, and the Service is not, an employment or recruitment service, financial service, taxation service or legal service.
- 3.3 Users acknowledge and agree that, due to the nature of the Service, the Service may contain certain User Features that are only operable by certain Users only. For example, certain User Features may only be available to Individuals, whilst certain User Features may only be available to Consultancy Firms.
- 3.4 We may add, remove or change any aspect of the Service, including the User Features, User Content and Our Content, from time to time, at our absolute discretion without notice to you.
- 3.5 TEB may, without prior notice or liability to you, carry out any maintenance or works to the Service that we deem appropriate, including updating, testing or repairing the Service. The duration of any maintenance or works may vary and we will endeavour (although we are under no obligation) to notify Users of the duration of such.
- 3.6 TEB may, without prior or subsequent notice to you, monitor the User’s use of the Service and collect and store Usage Information for any purposes that we deem appropriate, including for the purpose of maintaining the integrity, operability and security of the Service and compliance with these Terms of Service.
4. SUBSCRIPTION FEES & SUBSCRIPTION TERM
- 4.1 Users are required to pay Subscription Fees to TEB for access to and use of the Service, as disclosed on the Website.
- 4.2 TEB will inform Users of the amount of the Subscription Fee that is payable, the due date by which the Subscription Fee must be paid and the duration of the relevant Subscription Term. A User who fails to pay the Subscription Fee in accordance with our requirements may lose access to and use of the Service.
- 4.3 Subscription Fees are recurring payments and must be paid to renew and extend the Subscription Term (and a renewal and extension shall be for a duration equal to the Subscription Term or as otherwise agreed). If a User does not pay the further Subscription Fees by a due date (as indicated and set by us), then the Subscription Term will not be renewed or extended and the Subscription Term will expire and lapse on the last day of then-current Subscription Term. Upon the expiration and lapsing of the Subscription Term, a User will lose access to and use of the Service.
- 4.4 Unless we notify Users otherwise, Subscription Fees are payable in advance (either in advance of any further Subscription Term or in advance of a specific due date as set by us) and must be paid in full and cleared funds (without deduction, withholding, set-off or counterclaim) to TEB via any one of the payment methods accepted by us. In all cases, if a Subscription Fee that is payable to TEB is not received by the applicable due date, the relevant User is deemed to be in breach of these Terms of Service.
- 4.5 Users acknowledge and agree that:
- (a) time is of the essence for all payments due and payable to TEB under these Terms of Service;
- (b) it is their responsibility to avoid or prevent an expiry or lapsing (whether temporary or otherwise) of the Subscription Term by paying any Subscription Fees required to renew or extend a Subscription Term;
- (c) to facilitate the administration of the Service and promote user convenience, we may automatically deduct Subscription Fees from any authorised payment account or method that Users provide us details with for the purposes of renewing and extending a Subscription Term;
- (d) it is their responsibility to notify us if they do not want Subscription Fees to be automatically deducted as per sub-paragraph (c) above;
- (e) we may increase the Subscription Fees at any time but not on less than one (1) months’ notice to Users (increases shall not apply to a Subscription Term for which the applicable Subscription Fees have already been paid as at the date when the increase takes effect);
- (f) we are entitled to recover any unpaid Subscription Fees from you, including any portion of such fees on a pro rata basis for the duration of the relevant Subscription Term which you had access to the Service;
- (g) the Subscription Fees will not be refunded where the User closes, unsubscribes or terminates the Account, for whatever reason, or in the event that the User does not make use of the Service for whatever reason, or in the event that access to the Service is temporarily suspended from operation for a reason outside our control;
- (h) to the extent your use of the Service gives rise to any tax obligations or liabilities on you or TEB, including goods and services tax payable in respect of the Subscription Fees or the Services, you are responsible for meeting and paying such tax liability (we may recover from you any payments that we make on your behalf in respect of such obligations and liabilities); and
- (i) TEB may retain any payment information and details provided by the User its own accounting and business purposes, including to charge the Subscription Fees, and as otherwise required by law.
- 4.6 If Subscription Fees are not paid on time, TEB reserves the right to suspend or terminate your Account and deny you access to and the ability to use the Service without notice to you (in the event of a suspension, we will not reinstate the Service until any and all arrears have been received by us from you). For the avoidance of doubt, TEB’s right under this paragraph is in addition to any other rights and remedies it may have against you, and TEB is not liable for any loss or damage, howsoever arising, that you incur as a result of the exercise of our rights.
5. USER ACCOUNTS
- 5.1 When registering and establishing an Account, Users must provide all information which is required by TEB that we require, including submitting to any reasonable identity, background and/or expertise checks and verification processes that we require of you. The provision of insufficient or incorrect information (or refusing to submit to an identity/background/expertise check) may result in a delay or suspension of a User’s ability to access and use the Service, or may result in restricted or limited access.
- 5.2 During the registration and establishment of an Account, Users must properly and correctly indicate to us and nominate whether they will be accessing and using the Service as an Individual, Consultancy Firm or Service Provider. An inappropriate or inaccurate indication or nomination may result in a delay or suspension of a User’s ability to access and use the Service, or may result in restricted or limited access.
- 5.3 Users irrevocably and unconditionally agree to abide by the terms and conditions of these Terms of Service, and acknowledge and agree that:
- (a) all information that they provide to TEB (whether when establishing an Account or updating any such information) is and will be accurate, true and complete at all times;
- (b) they must not allow any other unauthorised third party to have access to the Account or to use the Service for any reason, and must takes steps to prevent any unauthorised third party from doing such;
- (c) they must notify TEB immediately if they become aware of any unauthorised access/use of their Account or the Service;
- (d) they must not cause or allow the Account to be leased, sold, transferred or licensed to another person, whether for profit or gratuitously;
- (e) they assume full responsibility for maintaining the confidentiality and security of the Account and Account information, including any username and password required for logging into the Account;
- (f) TEB may edit or remove any Account information, including Your Content, without notice and liability to Users, if we determine at our discretion that such information violates these Terms of Service or that it is appropriate pending investigation of any such violation;
- (g) TEB is not responsible for any losses or damages suffered by Users due to informational or technical errors in the Account registration and establishment process, and we will not be liable for any losses or damages suffered by Users due to the access and use of the User’s Account by an unauthorised third party, including the use of any Account information; and
- (h) TEB reserves the right to suspend or terminate a User’s Account, without notice and liability to the User, in the event the User has violated these Terms of Service in any respect or if we believe, at our discretion, that it is appropriate to do so pending an investigation of any such violation.
- 5.4 If a User registers and establishes an Account as a company, corporation, body corporate, incorporated association, partnership or other legal entity not being an individual person, an act or omission undertaken by any person on behalf of that User in relation to or in connection with the Service, including these Terms of Service, shall be deemed to be the act or omission of that User. It is the User’s responsibility to manage, oversee and ensure that access and use of the Service by any person on its behalf is undertaken in accordance with these Terms of Service, and a violation of these Terms of Service by such person will be deemed to be a violation of that User. Without limitation to how this paragraph is interpreted and for the avoidance of any doubt, a person accesses and/or uses the Service on behalf of a User if that person (i.e. an unauthorised third party user) accesses and/or uses the Service via that User’s Account but without the express authority of the User.
6. USER WARRANTIES & RESPONSIBILITIES
- 6.1 (a) As a User of the Service, you warrant, represent and undertake (as the context permits or requires) that:
- (a) if you are an individual person – you are over 18 years of age;
- (b) you will assist and cooperate with us in relation to any identity, background and/or expertise checks and verification processes that we choose to undertake on you;
- (c) you accept that we may contact any relevant third parties that we deem to be appropriate when performing identity, background and/or expertise check and verification on you;
- (d) you will not use or rely on the Service as the case may be:
- (i) in any manner or for any purpose that is contrary to these Terms of Service; or
- (ii) in circumstances where a reasonable person in your position would not have so used or relied on the Service; or
- (iii) in any manner that is unreasonable or excessive given the intended and known purpose, attributes and capabilities of the Service; or
- (iv) in any manner that adversely affects the normal performance or operation of the Service, or adversely affects the reputation of TEB and/or the Service itself;
- (e) you will obtain all necessary permits, licences or approvals applicable to you (if any) in relation to your use of the Service;
- (f) you must interact, deal and communicate with other Users via the Service in an honest, respectful and fair manner and will seek to resolve any disputes, issues or concerns with other Users in good faith and fairly;
- (g) you must not use any Personal Information of other Users or third parties that you obtain via the Service without the consent or authorisation of the other User or third party, as the case may be;
- (h) you will not violate or attempt to violate any security features of the Service, including by (without limitation):
- (i) accessing information or data not intended for you or logging onto a server or account without appropriate authority;
- (ii) attempting to probe, scan or test the vulnerability of the Platform or any associated system, server or network, or to breach security or authentication measures;
- (iii) interfering or attempting to interfere with service to any network, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” “hacking,” “hijack” or “crashing”;
- (iv) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting in connection with the Service;
- (v) attempting to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any part or component of the Service; or
- (vi) attempting to monitor, track or extract any Internet traffic or other data exchanged via the Service;
- (i) you are not an undischarged bankrupt or insolvent;
- (j) you have not been convicted or found guilty of any criminal offence and you are not currently pending trial or being prosecuted for a criminal offence;
- (k) you will not use the Service to defame or bring into disrepute the reputation of another person;
- (l) you will not use the Service to harm, exploit, injure, abuse, harass, stalk or spam any other person; and
- (m) you will not use the Service in relation to or in connection with the infringement of any laws or the lawful rights of a third party, including any Intellectual Property Rights.
- 6.2 As TEB provides the Service for the purposes of facilitating Users to connect and network with one another generally and not to manage or oversee any specific business or contractual relationships, you warrant, represent and undertake (as the context permits or requires) that it is entirely your responsibility if you use the Service in relation to or in connection with:
- (a) any for-profit (or not-for-profit) undertaking, enterprise, business, commercial opportunity, trade, professional practice, joint venture, partnership or any other dealings in trade or commerce;
- (b) any contract, agreement, commitment, undertaking or understanding that you enter into with another User;
- (c) any goods or services that you provide (or may provide) or acquire (or may acquire), including financial or professional advice;
- (d) any goods or services that you promote or advertise, regardless of whether you are the provider of the relevant goods or services; and/or
- (e) any employment, recruitment or other engagement of either you or another person,
and TEB is not responsible for any losses or damages suffered by Users in relation to or in connection with any of such matters.
- 6.3 In regards to User Content that you upload or provide to us in relation to or in connection with the Service, you acknowledge, accept, warrant and undertake (as the context permits or requires) that:
- (a) you have the necessary rights and authorities to provide or upload that User Content for the purposes of the Service, and that the User Content will not infringe the Intellectual Property Rights of a third party;
- (b) you must comply with any instructions, directions or rules established by TEB in respect of the provision or uploading of User Content;
- (c) your User Content may be published, transmitted or displayed via the Service for others to view and access;
- (d) your User Content may be stored, indexed and searched via the Service by other persons;
- (e) your User Content must be accurate, reliable, valid and complete;
- (f) your User Content should not contain the identity, contact details or Personal Information of another person unless that person has given your express consent to provide or upload that User Content;
- (g) your User Content must not contain material that could reasonably be regarded or perceived as being defamatory, obscene, offensive, stalking, threatening, abusive, violent, pornographic, vulgar, profane or indecent, unlawful, discriminatory, or which racially or religiously vilifies, incites violence or hatred, or is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;
- (h) you must not provide any User Content that you know or suspect (or ought reasonably to have known or suspected) to be false, fraudulent, is misleading or deceptive or otherwise makes representations that you do not believe to be true or reliable; and
- (j) TEB reserves the right to edit and remove any User Content in our sole discretion without notification to you, including editing or removing such User Content due to a breach of these Terms of Service.
- 6.4 In regards to all other User Content and Third-Party Content that is accessible or available via the Service other than User Content provided or uploaded by you, you acknowledge, accept, warrant and undertake (as the context permits or requires) that:
- (a) it is your responsibility to satisfy yourself of the accuracy, reliability, validity and completeness of any User Content or Third-Party Content;
- (b) the User Content and Third-Party Content may contain promotional statements, marketing devices, sensationalism or puffery designed to attract attention or raise the profile of a person or matter;
- (c) TEB does not (and has no obligation to) review, verify or validate any User Content or Third-Party Content (this is without prejudice to our right, as the operator and provider of the Service to edit or remove any User Content or Third-Party Content);
- (d) TEB does not endorse or recommend that you rely on or use the User Content or Third-Party Content in any way, including for use in a business or commercial context or dealing;
- (e) the ability to access or availability of any User Content or Third-Party Content shall not give rise to an inference that TEB has any relationship, affiliation or association with the author, owner or rights-holder of the User Content or Third-Party Content;
- (f) TEB makes no representation to you that you are permitted to use the User Content or Third-Party Content, or are granted any rights, including Intellectual Property Rights, to the User Content or Third-Party Content, such that it is your responsibility to ask for any permission from the relevant owner or rights-holder of the User Content or Third-Party Content and to determine whether the circumstances require you to seek such permission;
- (g) you must not infringe the lawful rights, including the Intellectual Property Rights, of any person holding or having the benefit of such rights in the User Content or Third-Party Content; and
- (h) it is your responsibility to obtain any legal or professional advice in relation to any User Content or Third-Party Content.
- 6.5 For the avoidance of doubt, if you upload or provide hyperlinks in your User Content to third party websites or Content (being Third-Party Content), including hyperlinks to any social media platforms (e.g. LinkedIn), you are responsible for seeking all the relevant permissions from any interested parties prior to uploading or providing any hyperlinks to ensure that you are not infringing the lawful rights, including the Intellectual Property Rights, of any person holding or having the benefit of such rights. Further, you are responsible for ensuring that any Third Party Content that is accessible via your hyperlinks does not breach these Terms of Service.
- 6.6 In circumstances where you have the opportunity to provide reviews, comments or ratings of other Users on the Service via the Service (“User Feedback”), your User Feedback should not include any Personal Information about the other Users that is not publicly disclosed in that User’s User Profile (for example, you should not disclose a User’s phone number if that User has not publicly disclosed their phone number on their User Profile). User Feedback should be limited to your first-hand experience (not what you heard from someone else) and must comply with all other terms and conditions in these Terms of Service governing the provision and uploading of User Content by you. Further, you should avoid broad generalisations and exaggerations in your User Feedback and, if appropriate, you should update your User Feedback accordingly.
7. INTELLECTUAL PROPERTY
- 7.1 Users acknowledge and agree in respect of Our Content that:
- (a) Our Content is made available for use by Users on a limited, non-transferable and non-exclusive licence from TEB for the purpose of enabling Users to enjoy the benefits of the Service in accordance with these Terms of Service;
- (b) they will only use Our Content in connection with the intended purpose of the Service as disclosed in these Terms of Service;
- (c) TEB retains full and complete title and interest to Our Content, including all Intellectual Property Rights;
- (d) they do not acquire any right, title or interest (including any Intellectual Property Rights) in Our Content under any circumstances; and
- (e) they must not copy, license, lease, sell, assign, transfer, distribute, publish, disseminate, communicate to the public, store, reproduce, adapt or otherwise deal with Our Content in any way other than as expressly permitted under these Terms of Service.
- 7.2 All Users acknowledge and agree to the following if they provide or upload their User Content to the Service in the course of using the Service:
- (a) that the User is providing a continuous warranty under this sub-paragraph 7.2(a) to TEB that he, she or they have the full and complete title, interest or right to provide or upload the User Content to the Service and for the User Content to be used in any manner which would be reasonably be expected in light of the nature of the Service and these Terms of Service;
- (b) that the User grants TEB an irrevocable, perpetual and royalty-free licence to use such User Content, including copying, reproducing, adapting, editing, reformatting, storing, displaying publishing, indexing, communicating, transmitting, distributing or removing the User Content, in connection with the operation, maintenance and upgrading of the Service as required by TEB without any notice or restrictions to you whatsoever;
- (d) that the User will not undertake any conduct which has the effect of preventing or interfering with TEB’s use of the User Content in accordance with these Terms of Service, including by commencing any legal proceedings against TEB for a breach of any Intellectual Property Rights subsisting in the User Content or for a breach of any moral rights (as defined in Part IX of the Copyright Act 1968 (Cth)) in connection with the User Content.
- 7.3 In respect of all Third-Party Content, Users acknowledge and agree that TEB does not purport to confer on the User any right, title or interest in any such Third-Party Content, nor does TEB purport to possess any right, title or interest in any Third-Party Content.
- 7.4 Users acknowledge and agree that access to and use of any Third-Party Content may be subject to the terms and conditions of the relevant third-party to which such content belongs. It is a User’s responsibility to find out and comply with any terms and conditions governing the access and use of Third-Party Content, and TEB is not liable for any losses or damages suffered by the User in this respect.
8. TERMINATION & SUSPENSION
- 8.1 Users may terminate their Account and use of the Service at any time during the Subscription Term by notifying us using any method provided by us via the Service. Subject to us being properly notified of your termination, such termination shall be effective at the end of the then-current Subscription Term and you must cease using the Service thereafter. You will not be entitled to a refund of the Subscription Fee for any period after you serve a termination notice. For the avoidance of doubt, the mere non-use of the Service does not constitute notification to us that you wish to terminate your Account and use of the Service.
- 8.2 TEB may, without notice to a User, terminate or suspend the provision of the Service to a User, including the termination or suspension of any Account, if:
- (a) the User is in breach of any term or condition of these Terms of Service, including a failure to comply with any warranties and undertakings given to TEB in these Terms of Service;
- (b) the continual access or use of the Service by the User causes damage or detriment to TEB or otherwise impairs the normal operation, security or integrity of the Service; or
- (c) the use of the Service by the User may give rise to any legal liability to a third party.
TEB may also exercise its right of termination or suspension in this paragraph 8.2 if it reasonably suspects that any of the circumstances in subparagraphs (a) to (c) above exists. A termination or suspension under this paragraph shall be effective immediately.
- 8.3 A User whose Account and use of the Service is terminated or suspended by reason of paragraphs 8.1 or 8.2 above is not entitled to receive any refund of any Subscription Fees paid to TEB or recover from TEB any compensation for any losses or damages suffered by the User as a result thereof.
- 8.4 In the event that TEB exercises its rights under paragraph 8.2 above, the User must not subscribe for another Account or continue to use the Service. For the avoidance of doubt, the obligation in this paragraph 8.3 survives the termination of these Terms of Service.
- 8.5 Users acknowledge and accept that any rights under this paragraph 8 are in addition to any other rights TEB may have under these Terms of Service and the general law, nor will the termination of the Service deprive TEB from the exercise of any rights that have accrued prior to such termination (unless those rights are necessarily inconsistent with the termination).
DISCLAIMERS, LIMITATIONS AND INDEMNITIES
- 9.1 To the maximum extent permitted by law, TEB expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the Service, including any implied warranties or guarantees of acceptable quality, merchantability, fitness for a particular purpose or non-infringement of third-party rights not otherwise expressly disclosed in these Terms of Service.
- 9.2 In using or attempting to use the Service, you unconditionally and irrevocably acknowledge and agree that TEB is not liable to you for any loss or damage that you suffer, howsoever suffered, in relation to any of the following matters:
- (a) a lawful exercise of any rights that we may have under these Terms of Service or otherwise;
- (b) a breach of these Terms of Service by you or another User, including your use or reliance on the Service in breach of these Terms of Service or if any warranty or undertaking required to be given to us by a User proves to be false or misleading;
- (c) the accuracy, reliability, validity or completeness of User Content or Third-Party Content accessible or available via the Service;
- (d) the actions or omissions of another User, including your dealings with other Users and information obtained from other Users;
- (e) any dealings you have or enter into with another User, including business and other dealings;
- (f) the results or consequences arising from your use of the Service;
- (g) your inability to access or use the Service due to matters outside our control, such as because any software or hardware that you use is incompatible with the Service (or any User Features);
- (h) performance issues, interruptions or technical errors in the Service, including the presence of “viruses”, “Trojans”, “spyware”, “adware”, “malware”, “bots” and other similarly harmful computer effects;
- (i) the non-availability of and/or disruption to the Service, including connectivity or network errors; and/or
- (j) differences in the availability, quality or experience of the Service between Users, including as a result of any of the matters in sub-paragraphs (a) to (i) above.
- 9.3 To the maximum extent permitted by law, TEB’s maximum liability to you for any loss or damage suffered by you arising out of, in connection with or relating to the Service, regardless of the type of action you may bring against us for such loss or damage, is limited to the greater of: (a) the total Subscription Fees that we have received from you in the twelve (12) month period prior to when your claim or action first accrued; or (b) AUD$[ 1,000 ]. However, in no circumstance shall we be liable to you for any indirect or consequential loss or damage suffered by you, such as a loss of profits, a loss of business opportunities, a loss of reputation, a loss of anticipated savings, a loss of revenue, a loss of data, a loss of goodwill and a loss of contracts.
- 9.4 Nothing in these Terms of Service is intended to exclude, restrict or modify and condition, warranty, statutory guarantee, right or remedy which cannot be lawfully excluded, restricted or modified, including various matters in the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). However, in all instances where TEB is able to limit our liability for a breach of any condition, warranty, statutory guarantee, right or remedy which cannot be lawfully excluded, restricted or modified, our liability to you will be so limited to the extent permitted by law, including the re-supply of the services again or the payment to you of the cost of having the services supplied again.
- 9.5 To the maximum extent permitted by law, you must indemnify and keep TEB indemnified in full from and against any and all loss or damage (including legal costs on an indemnity basis) suffered by us arising out of, in connection with or relating to your use of the Service in breach of these Terms of Service, including without limitation in respect of any loss or damage claimed against us (or any entity or person related to us) by any third party (including any other Users). The kinds of loss and damage that you must indemnify us from and against include loses suffered or incurred in defending or settling any dispute, legal action or other claim, action or demand (such as the payment of any fees, charges, taxes, levies, administrative costs, penalties or legal expenses). Further, Users must provide TEB with reasonable assistance and cooperation, including information, if requested by TEB for the purposes of pursuing, defending or settling any dispute, legal action, claim or demand from a third party (including any other Users) that relate to your use of the Service or a breach of these Terms of Service.
PROMOTIONS AND MARKETING
Users acknowledge and agree that TEB may contact you in regards to any marketing and promotional matters, special offers, promotions, credits, awards or discounts offered by us in relation to the Service, our business or the goods or services of any of our partners and sponsors that we believe may be of interest to you. All such promotions will be run at the sole discretion of TEB, and can be modified or terminated by us at any time with or without prior notice to you. Promotions may be offered on a time-limited basis and may be subject to certain restrictions and other terms and conditions.
- 11.1 Despite any other matters in these Terms of Service, we reserve the right to monitor disputes between Users in regards to the Service.
- 11.2 If you have any issues or concerns regarding the Service, including a dispute or potential dispute with us, or you wish to report a violation of these Terms of Service by another User, you can contact us via any method available on the Service or by emailing us.
- 12.1 TEB may communicate with you by any means available to us, including e-mailing, by telephone, text or other form of messaging, from time to time in relation to the Service.
- 12.2 If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms of Service to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
- 12.3 TEB shall not be taken to waive the enforcement of any of its rights, whether for past, future or continuing breaches, under these Terms of Service unless made in writing and signed by an authorised representative of TEB and is only effective in the specific instance and for the specific purpose for which it is given.
- 12.4 Any failure or delay by one party to compel performance by another party of any of the terms and conditions of these Terms of Service does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the first party to enforce them against the other party at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.
- 12.5 A single or partial exercise or waiver of a right by a party does not preclude another or further exercise of that right or the exercise of any other right.
- 12.6These Terms of Service constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.
- 12.7 Each party acknowledges that in entering into these Terms of Service it is not relying on, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party that is not expressly stated in these Terms of Service.
- 12.8 Nothing in these Terms of Service shall exclude or restrict the liability of either party arising out of fraud, fraudulent misrepresentation or misleading and deceptive conduct.
- 12.9 In the event there is any inconsistency between these Terms of Service and any other information appearing on the Service or Website, these Terms of Service shall prevail.
- 12.10 The User may not assign, dispose of or otherwise transfer these Terms of Service or any rights or obligations under these Terms of Service. TEB may freely assign, dispose of or otherwise transfer these Terms of Service or any rights or obligations under these Terms of Service, and in the event of such assignment or transfer the User undertakes to fulfil all of its obligations under these Terms of Service to such assignee or transferee.
- 12.11 These Terms of Service shall be construed in accordance with and governed by the laws of the New South Wales, Australia, and the Courts of which shall have jurisdiction in respect of disputes arising out of or related to the use of the Service and these Terms of Service.
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