Terms of Service

The Terms of Service governing your use of our Business Performance Pty Ltd web site.

PLEASE READ THESE TERMS OF SERVICE ("AGREEMENT" OR "TERMS OF SERVICE") CAREFULLY BEFORE USING ANY OF THE SERVICES OFFERED BY BUSINESS PERFORMANCE PTY LTD). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AT HTTP://WWW.BUSINESSPERFORM.COM (THE "SITE") THE SERVICE OWNED AND OPERATED BY BUSINESS PERFORMANCE PTY LTD, AND ANY OTHER FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY BUSINESS PERFORMANCE PTY LTD IN CONNECTION THEREWITH (COLLECTIVELY WITH THE SITE, THE "SERVICE"). BY USING THE SITE OR SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE SITE, YOU (AND THE ENTITY THAT YOU REPRESENT) UNCONDITIONALLY AGREE TO BE BOUND BY AND A PARTY TO THIS AGREEMENT. THIS AGREEMENT APPLIES TO ALL USERS OF THE SITE OR SERVICE, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS OR SERVICES ON THE SITE.

1. Acceptance of Terms

The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein, and the Privacy Policy available at http://www.businessperform.com/policies/privacy_policy.html, and all other operating rules, policies and procedures that may be published from time to time on the Site by Business Performance Pty Ltd, each of which is incorporated by reference. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Business Performance Pty Ltd from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.

Business Performance Pty Ltd may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.

2. Modifications of Terms of Service

Business Performance Pty Ltd reserves the right, at its sole discretion, to modify or replace any of the Terms of Service, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you an email. Business Performance Pty Ltd may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Service periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Service constitutes acceptance of those changes.

3. Rules and Conduct

As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Service. The Service (including, without limitation, any Content or User Submissions (both as defined below)) is provided only for your own personal, non-commercial use. You are responsible for all of your activity in connection with the Service. For purposes of the Terms of Service, the term "Content" includes, without limitation, User Submissions, videos, audio clips, blogs, blog comments, profiles, information, data, text, photographs, software, graphics, and interactive features generated, provided, or otherwise made accessible by Business Performance Pty Ltd or its partners on or through the Service.

By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, including without limitation any User Submission, that:

  • infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
  • you know is false, misleading, untruthful or inaccurate;
  • is unlawful, threatening, harmful to minors in any way, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane;
  • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
  • involves commercial activities and/or sales or offers of sale without Business Performance Pty Ltd's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
  • contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Business Performance Pty Ltd or any third party;
  • impersonates any person or entity, including any employee or representative of Business Performance Pty Ltd;
  • promotes or provides instructional information about illegal activities or any act of cruelty to animals; or
  • exceeds the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use.

Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Business Performance Pty Ltd in its sole discretion) an unreasonable or disproportionately large load on Business Performance Pty Ltd's (or its third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Business Performance Pty Ltd may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run Maillist, Listserv, any form of auto-responder or "spam" on the Service; or (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site.

You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.

All merchandise sold through the Site is subject to US export control laws and regulations and diversion of such goods contrary to US export requirements is strictly prohibited.

Business Performance Pty Ltd does not guarantee that any Content or User Submissions (as defined below) will be made available on the Site or through the Service. Business Performance Pty Ltd has no obligation to monitor the Site, Service, Content, or User Submissions. However, Business Performance Pty Ltd reserves the right to (i) remove, edit or modify any Content in its sole discretion, including without limitation any User Submissions, from the Site or Service at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or User Submission or if Business Performance Pty Ltd is concerned that you may have violated the Terms of Service), or for no reason at all; and (ii) refuse to post or remove any User Submissions at any time from the Service.

4. Registration

You may browse the Site and view Content without registering, but as a condition to using certain aspects of the Service, you may be required to register with Business Performance Pty Ltd and select a password and screen name ("User ID") and profile. You shall provide Business Performance Pty Ltd with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your Business Performance Pty Ltd account. You shall not (i) select or use as a User ID a name of another person with the intent to impersonate that person; (ii) use as a User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a User ID a name that is otherwise offensive, vulgar or obscene. Business Performance Pty Ltd reserves the right to refuse registration of, or cancel, a User ID in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Business Performance Pty Ltd password. You shall never use another user's account without such other user's express permission. You will immediately notify Business Performance Pty Ltd in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

5. Fees and Payment

Business Performance Pty Ltd reserves the right to require payment of fees for certain features of the Service. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Site in connection with such features. Business Performance Pty Ltd reserves the right to change its price list and to institute new charges at any time, which may be sent by email or posted on the Site. Use of the Service by you following such notification constitutes your acceptance of any new or increased charges.

6. Third Party Sites

The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third party websites, you do so at your own risk. These other websites are not under Business Performance Pty Ltd's control, and you acknowledge that Business Performance Pty Ltd is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Business Performance Pty Ltd or any association with its operators. You further acknowledge and agree that Business Performance Pty Ltd shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, User Submission, goods or services available on or through any such website or resource.

7. Copyright and Trademarks

The Site and the Content are protected by Australian and foreign copyright laws, and belong to Business Performance Pty Ltd or its partners, affiliates, contributors or third parties. The copyrights in the Content are owned by Business Performance Pty Ltd or other copyright owners who have authorized their use on the Site. You may download and reprint Content for non-commercial, non-public, personal use only. If you are browsing this Site as an employee or member of any business or organization, you may download and reprint Content only for educational or other non-commercial purposes within your business or organization, except as otherwise permitted in writing by Business Performance Pty Ltd.

Except for the uses permitted in these Terms of Service, the Site and the Content and the Intellectual Property Rights therein may not be copied, adapted, distributed, published, sold, leased, licensed, used or reproduced in any way. For these purposes "Intellectual Property Rights" includes the following (wherever and whenever arising and for the full term of each of them): any patent, trade mark, trade name, service mark, service name, design, design right, copyright, database right, moral rights, know how, trade secret and other confidential information, rights in the nature of any of these items in any country, rights in the nature of unfair competition rights and rights to sue for passing off or other similar intellectual or commercial right (in each case whether or not registered or registrable) and registrations of and applications to register any of them.

8. User Submissions

The Service provides you with the ability to add, create, upload, submit, distribute or post ("Submitting") content, blogs, blog comments, profiles, data, text, photographs, graphics, or other information to the Services (collectively, the "User Submissions"). By Submitting User Submissions on or through the Service, you:

  • acknowledge that you are publishing that User Submission, and that you may be identified publicly by any information you Submit (and by your IP address and email address by the applicable blog administrator) in association with any such User Submission;
  • hereby do and shall grant Business Performance Pty Ltd a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Site, the Service and Business Performance Pty Ltd's (and its successors and assigns') business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third party websites) and to allow others to do so. You also hereby do and shall grant each user of the Site, and/or the Service a non-exclusive license to access your User Submissions through the Site and the Service, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions. For clarity, the foregoing license grant to Business Performance Pty Ltd does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s), unless otherwise agreed in writing;
  • represent and warrant, and can demonstrate to Business Performance Pty Ltd's full satisfaction upon request that you (i) own or otherwise control all rights to all content in your User Submissions, or that the content in such User Submissions is in the public domain, (ii) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any content in your User Submissions to use such content as contemplated by these Terms of Service and to grant the license rights set forth above, (iii) you have the permission to use the name and likeness of each identifiable individual person and to use such individual's identifying or personal information as contemplated by these Terms of Service; and (iv) you are authorized to grant all of the aforementioned rights to the User Submissions to Business Performance Pty Ltd and all users of the Service;
  • agree to pay all royalties and other amounts owed to any person or entity due to your Submission of any User Submissions to the Service;
  • represent and warrant that the use or other exploitation of such User Submissions by Business Performance Pty Ltd and use or other exploitation by users of the Site and Service as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights; and
  • acknowledge that Business Performance Pty Ltd shall have the right to delete, edit, modify, reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which such content originated and that Business Performance Pty Ltd will not be liable for any errors or omissions in any content; and that Business Performance Pty Ltd cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.

Business Performance Pty Ltd does not endorse and has no control over any User Submission. Business Performance Pty Ltd cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.

9. Pop-Ups and Pop-Unders

Business Performance Pty Ltd does not use pop-ups or pop-unders anywhere within the Site. If you receive one as a result of using the Site, be aware that it did not originate from the Site but from a third party link.

10. Termination

Business Performance Pty Ltd may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership or use. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

11. Warranty Disclaimer

Business Performance Pty Ltd has no special relationship with or fiduciary duty to you. You acknowledge that Business Performance Pty Ltd has no control over, and no duty to take any action regarding: which users gains access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Business Performance Pty Ltd from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Business Performance Pty Ltd makes no representations concerning any Content contained in or accessed through the Services, and Business Performance Pty Ltd will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Service.

THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND BUSINESS PERFORMANCE PTY LTD HEREBY DISCLAIMS ALL (AND HAS NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BUSINESS PERFORMANCE PTY LTD, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.

SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

12. Indemnification

You shall defend, indemnify, and hold harmless Business Performance Pty Ltd and each of its affiliates, employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorney's fees, that arise from or relate to your use or misuse of, or access to, the Site, Service, Content, or otherwise from your User Submissions, violation of the Terms of Service, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Business Performance Pty Ltd reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Business Performance Pty Ltd in asserting any available defenses.

13. Limitation of Liability

IN NO EVENT WILL BUSINESS PERFORMANCE PTY LTD, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES ARISING OUT OF (I) THE USE OF OR INABILITY TO USE THE SITE, THE SERVICE, OR THE CONTENT; (II) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE; (III) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE, THE SERVICE AND/OR THE CONTENT; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE CONTAINING VIRUSES OR OTHER HARMFUL COMPONENTS; OR (VI) ANY OTHER MATTER RELATING TO THE SITE, THE SERVICE, OR THE CONTENT, EVEN IF BUSINESS PERFORMANCE PTY LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SITE, THE SERVICE, THE CONTENT, OR WITH THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.

BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, BUSINESS PERFORMANCE PTY LTD'S LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL IN NO EVENT EXCEED AUSTRALIAN $100.00.

14. Dispute Resolution

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Business Performance Pty Ltd agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

The Terms of Service shall be governed by and construed in accordance with the laws of the State of Victoria and the Commonwealth of Australia. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its reasonable attorney's fees and costs. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.

15. Integration and Severability

The Terms of Service are the entire agreement between you and Business Performance Pty Ltd with respect to the Service and use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Business Performance Pty Ltd with respect to the Site and/or Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

16. Miscellaneous

Business Performance Pty Ltd shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Business Performance Pty Ltd's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). The Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with Business Performance Pty Ltd's prior written consent. Business Performance Pty Ltd may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Service and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Service, the prevailing party will be entitled to recover reasonable costs and attorney's fees. All notices under the Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; or when receipt is electronically confirmed, if transmitted by facsimile or e-mail.

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