This agreement (agreement) is a legal agreement between you (Customer or you the individual) and Business Analysts Pty Ltd (ABN 45 110 689 702) (BAPL or we) in relation to your use of BAPL’s services. The Customer agrees to be bound by and accept the terms and conditions of this agreement through the Customer’s authorised representative signing where indicated on the Product Page. The person who has agreed to be bound by this agreement by signing this agreement warrants that he/she has the authority of and was authorised by the Customer to accept on behalf of the Customer and agrees that acceptance is binding on the Customer. If for any reason this agreement is not binding upon the Customer, then the Customer is prohibited from accessing or using the Services in any manner whatsoever.
1. Ownership of Software
The Customer acknowledges and agrees that the Software and all Intellectual Property Rights in the Software are owned exclusively by BAPL or its licensors from time to time. The Software is protected under copyright and other intellectual property laws of Australia and international copyright treaties. The Customer acknowledges and agrees that the price paid by the Customer for the Software is included in the Service Fee granting the Customer only the rights set forth in this agreement.
2. Access to Software
(a) The Customer agrees to use the Software only as authorised in this agreement. This agreement does not convey to the Customer any ownership rights or any other interest in the Software.
(b) The Customer acknowledges that the Software is provided in a standard form as a service, and is not customised for the Customer’s specific requirements.
3. Scope of license
(a) Access Right is a single named-user license, which means the Customer is authorised to use the Software on as many personal computers as required under the one single user licence.
i. The Customer must not:
1. copy or make any changes or modifications to the Software;
2. translate, de-compile, disassemble or otherwise reverse engineer the Software;
3. loan, rent, lease, sub-license, or provide access to the Software or any copy to others for any purpose;
4. use the Software in any way that could:
a. infringe the rights of BAPL or a third party, including intellectual property rights and privacy rights; or
b. damage the reputation of BAPL or any of its licensors, or the goodwill or other rights associate with the Software;
5. make any attempt to circumvent the technological measures that control access to the Software;
6. remove or obscure any of the patent, copyright, trademark, or proprietary rights notices of BAPL or any of its licensors contained in or affixed to the Software;
7. unbundle individual or component parts of the Software for independent use; or
8. incorporate any portion of the Software into a product or service that competes with the Software.
ii. The Customer must use all reasonable efforts to protect the Software from unauthorised use, access, modification, reproduction, distribution or publication. The Customer must not make any uses or copies of the Software that are not specifically authorised by the terms of this agreement, and BAPL reserves all rights that are not expressly granted to the Customer.
4. Term and termination
(a) Subject to the above, this agreement will become effective on the Commencement Date (purchase date) and will remain in force for the Initial Term, or until otherwise terminated in accordance with these terms.
i. This agreement will automatically renew for subsequent terms of the same duration as the Initial Term, unless either party provides at least 14 days' notice of non-renewal in writing prior to the expiry of the Initial Term or any subsequent term. The Customer agrees that BAPL may increase the Service Fee by providing at least 30 days’ notice prior to the expiry of the then current term.
ii. Either party may terminate this agreement by immediate written notice to the other party where the other party:
1. breaches or defaults in the performance or observance of any material provision of this agreement, and such breach or default:
a. is capable of remedy and is not cured within 30 days after the giving of written notice to the other party specifying such breach or default; or
b. is incapable of remedy; or
2. in the case of the Customer:
a. breaches any of the items in these Terms and Conditions. Does not pay for any or part of their subscription.
iii. BAPL may terminate this agreement upon giving the Customer 14 days’ written notice if the Software is no longer available for BAPL to provide access to the Customer for any reason.
iv. In the event of any termination of the agreement, the Customer must cease accessing the Software from any device and any copies (whole or partial), modifications or merged portions, and clear any client-side data cache derived from the terminated Services. The termination of this agreement does not affect any right that has accrued to a party before the termination date.
v. Where this agreement is terminated by the Customer, or by BAPL for the Customer’s breach:
1. the Customer is not entitled to any refund for any prepaid Service Fees as at the date of termination; and
2. within 30 days of the date of termination the Customer must pay to BAPL any outstanding Service Fees payable to BAPL for the remainder of the Term.
vi. Where this agreement is terminated by BAPL upon 14 days’ written notice, or by the Customer for BAPL’s breach, BAPL must refund the Customer the balance of any prepaid Service Fees as at the date of termination (net of any other amounts owing to BAPL) and this will be the sole remedy of the Customer.
5. Services generally
(a) In addition to the requirements in above, the Customer must not use or access the Services to:
1. spam, spoof, or phish email; transmit junk email or offensive or defamatory material; or stalk or make threats of physical harm;
2. store or transmit any Malicious Code;
3. violate any law or regulation;
4. probe, scan, or test the vulnerability of any Services or breach any security or authentication measures used by any Services;
5. benchmark the availability, performance, or functionality of any Services for competitive purposes; or
6. manually or systematically harvest information and data contained within the Services other than Customer Content or otherwise authorised in relation to the use of the Services.
ii. The Customer acknowledges that BAPL may in its absolute discretion undertake maintenance, testing or repairs in relation to the Services.
iii. BAPL may provide the Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under this agreement.
iv. System failures or other events beyond BAPL’s reasonable control may interrupt the Customer’s access to the Services. BAPL may not be able to provide advance notice of such interruptions.
v. BAPL may suspend access to the Services:
1. if the Customer materially breaches this agreement and fails to timely cure the breach;
2. if BAPL reasonably believes that the Customer's use of the Services will subject BAPL to immediate liability or adversely affect the integrity, functionality, or usability of the Services;
3. for scheduled maintenance or to make modifications to the Services;
4. to enjoin a threat or attack on the Services; or
5. if the Services become prohibited by law or regulated to a degree that continuing to provide them would impose a commercial hardship.
vi. The Customer acknowledges that access to and use of the Services may be temporarily unavailable, without prior notice, for any unanticipated or unscheduled downtime or unavailability of all or any portion of the Services, including system failure or other events beyond the reasonable control of BAPL and its third party providers. When feasible, BAPL will notify the Customer of any Services suspension beforehand and give the Customer reasonable opportunity to take remedial action. BAPL is not responsible (in negligence or otherwise) for any damage, liabilities, or losses (including any loss of data or profits) that or any other consequences that the Customer may incur as a result any interruption or suspension of the Services.
vii. The Customer must promptly (and in any event, within 48 hours) notify BAPL if the Customer becomes aware of any unauthorised use of the Customer's subscription or any other breach of security regarding the Services.
6. Third Party Software
If the Customer purchases any software from any person to be used in conjunction, connection or association with the Services for any reason, including to add functionality to the performance of the Software (Third Party Software), BAPL will not be liable for any damage or loss that occurs to the Services or the Customer’s computer system or data. If BAPL explicitly recommends or requires the Customer to use any Third Party Software in order to be able to access or use the Services, BAPL will endeavour to solve any material issues that arise in connection with the reasonable, expected and ordinary use by the Customer of that Third Party Software in relation to the Services.
7. Customer Obligations
(a) The Customer is solely responsible for its own computer systems, and must ensure that it takes precautions in respect of its use of the Services in accordance with this agreement. BAPL is not liable to the Customer for any interference with or damage to the Customer’s computer systems arising out of or in connection with the use of the Services.
(b) It is the responsibility of the customer to store and protect their username and password information.
8. Service Fees and payment
(a) In consideration of the provision of the Services, the Customer must pay the Service Fees to BAPL annually (with payment due on the Commencement Date) in the manner approved by BAPL (such as credit card or direct debit arrangements).
i. The Service Fee is exclusive of all taxes, duties and surcharges payable in respect of the Services and in respect of this agreement.
ii. If the Customer disputes the whole or any part of any fee under this agreement, the Customer must pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement. If it is subsequently resolved that a further amount is payable, the Customer must pay that amount together with interest at the rate of 12 per cent per annum.
9. Intellectual property
(a) Nothing in this agreement constitutes a transfer of any Intellectual Property Rights. The Customer acknowledges that BAPL or each of its licensors owns or licenses all Intellectual Property Rights in the Services and must not directly or indirectly do anything that would or might invalidate or put in dispute BAPL’s or its licensors title in, or right to use, the Services.
i. The Customer must not seek, and must not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates the Services. This express prohibition of patenting shall not apply to the Customer’s software and technology except to the extent that the Services, or any portion thereof, is a part of any claim or preferred embodiment in a patent application or similar application.
ii. BAPL may freely use any feedback, suggestions, or requests for improvements for the Services that the Customer provides to BAPL.
iii. If any person makes any claim alleging that any of the Services (or use of the Services) infringes any Intellectual Property Rights or Moral Rights of any person, the Customer must:
1. promptly notify BAPL in writing;
2. not make any admissions or take any action in relation to the claim without BAPL’s written consent;
3. permit BAPL control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
4. cooperate with, assist and act at all times in accordance with the reasonable instructions of BAPL, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
10. Customer Content
i. Upon termination of this agreement, the Customer may continue to use templates (Templates) provided as part of the Services, subject to the following:
1. the Customer is not entitled to any updates to the Templates, and acknowledges that the Templates will not remain current;
2. the Customer must only use the Templates for its personal purposes, and may not disclose the Templates to third parties; and
3. the Customer is not entitled to modify the Templates or to separately use individual components of the Templates.
BAPL reserves the right to conduct audits of the Customer's use of the Templates, or to have such audits conducted by a third party. This right survives termination or expiration of this agreement.
11. Customer Information
(a) We collect the content, communications and other information you provide when you use our Products, including when you sign up for an account, message or communicate with others.
(b) We collect information about the Pages, accounts, you visit and forums you participate in. and how you interact with them across our Products, such as people you communicate with the most or groups you are part of.
(c) We collect information about how you use our Products, such as the types of content you view or engage with; the features you use; the actions you take; the people or accounts you interact with; and the time, frequency and duration of your activities. For example, we log when you're using and have last used our Products, and what pages and other content you view on our Products.
(d) Information about transactions made on our Products. If you use our Products for purchases or other financial transactions (such as when you make a purchase of a course), we collect information about the purchase or transaction. This includes payment information, such as your credit or debit card number and other card information; other account and authentication information; and billing, shipping and contact details. This is all stored as per PCI DSS compliance.
i. BAPL may at any time in its absolute discretion assign, novate, charge, sub-contract or otherwise deal with this agreement and the Software and any of its rights or obligations arising under or in relation to this agreement and the Services.
The Customer indemnifies BAPL and keeps BAPL indemnified from and against all actions, claims, damages, costs and expenses (including legal costs on a solicitor and own client basis) that arise directly or indirectly out of:
(a) the malicious or negligent access to or use of the Services by the Customer or its directors, officers, agents, employees or contractors;
i. any intentional or reckless breach of this agreement by the Customer, but not a breach resulting from an error of judgment or mistake made in good faith; or
ii. the wilful, illegal, negligent or fraudulent act, error or omission of the Customer or its directors, officers, agents, employees or contractors.
14. Limited warranty and liability
(a) To the full extent permitted by Commonwealth, State, Territory or other law or laws applicable to this agreement, any conditions or warranties imposed by such legislation are hereby excluded. Insofar as liability under or pursuant to any legislation, whether of Commonwealth, State, Territory or other government, may not be excluded, such liability is limited to, at BAPL’s sole discretion:
1. replacement of any defective Services;
2. repair, correction or a workaround of defects in the Services; or
3. return of the Service Fees paid by the Customer for the Services provided that the Customer ceases to access or use the Services, and clears any client-side data cache derived from the terminated Services.
ii. To the extent permitted by law, the Services are provided “as is” without warranty of any kind. The Customer acknowledges that no promise, representation or warranty or undertaking has been made or given by BAPL or any person or company on its behalf in relation to the profitability of or any other consequences or benefits to be obtained from the delivery, access to or use of the Services. The Customer has relied upon their own skill and judgement in deciding to use and access the Services.
iii. Except as and to the extent that it is hereinbefore provided and to the maximum extent permitted by law, under no circumstances shall BAPL or any related company be liable for:
1. any loss, damage or injury arising from the access to or use of the Services or any failure by BAPL or any related company to perform any obligation or observe any terms of this agreement; or
2. any indirect, consequential or incidental loss, damage or injury, including any loss of profits, loss of revenue, loss of opportunity, loss of data, loss of time, loss of anticipated savings, loss of business reputation or future reputation, loss of production and loss of or damage to goodwill.
iv. To the extent permitted by law, BAPL’s total cumulative liability under this agreement from all causes of action of any kind, including but not limited to contract, tort (including negligence), strict liability, breach of warranty, misrepresentation or otherwise, is limited to 50% of the Service Fees paid by the Customer in the 12 months prior to the first claim.
15. Discontinuation of Services
BAPL reserves the right to discontinue any part of the Services or otherwise stop support, upgrades or enhancements to the Services at any time and without reason. In the event BAPL decides to discontinue any Services or otherwise stop support, upgrades or enhancements, BAPL will notify the Customer, and the Customer will be entitled to a pro-rated refund on any remaining amount paid in respect of the Service Fee by the Customer insofar as that amount relates to the relevant part of the Services. The remaining amount will be calculated on a pro-rata basis based on number of days of access or use remaining. For the avoidance of doubt, if no amount is remaining, the Customer will not be entitled to a refund.
Any dispute arising out of or relating to this agreement that cannot be settled through negotiation shall be settled by mediation in Brisbane, Australia in accordance with the Institute of Arbitrators and Mediators of Australia Mediation Rules (current as at the date of the dispute).
17. Applicable law
(a) Unless otherwise restricted by law, the Customer agrees that this agreement shall be construed, interpreted and governed by, the laws of Queensland, Australia.
i. If any action is brought by either party against the other regarding any subject matter of this agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation. The Customer further agrees that any claim relating to this agreement shall be brought in the courts of competent jurisdiction in the State of Queensland, Australia.
18. General terms
(a) If any term or part of any term of this agreement is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the term (or where possible, the offending part) is to be severed from this agreement without affecting the enforceability, validity or legality of the remaining terms (or parts of those terms) which will continue in full force and effect.
i. A right created by this agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
ii. This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.
iii. Each party must promptly execute all documents and do everything necessary or desirable to give full effect to this agreement.
iv. The expiration or termination of this agreement does not affect any right that has accrued to a party before the expiration or termination date.
v. Any indemnity or any obligation of confidence under this agreement is independent and survives termination or expiration of this agreement. Any other term by its nature intended to survive termination or expiration of this agreement survives termination or expiration of this agreement.
vi. All notices, demands, consents, approvals, requests or other communication given in connection with this agreement (notice) must be given in English and in writing and may be given by personal delivery, certified mail, facsimile, email or any other customary means of communication addressed to the recipient at the address for that party appearing in the this agreement or the Proposal, or any new address as may be notified by a party to the other party as its new address for service. Notices given pursuant to this agreement shall be effective on the date on which received by the addressee.
vii. BAPL may vary this agreement at any time by providing 30 days’ prior written notice to the Customer for the following reasons:
1. a change in relevant laws, policy or industry code or practice;
2. a change to the terms and conditions of any agreement with BAPL’s relevant licensors or third party service providers;
3. a change to the Service Fees, including due to an increase in charges to BAPL by third party licensors and service providers; and/or
4. for any other reason.
viii. The Customer will be deemed to accept the updated agreement as varied within 30 days of receipt of such notice, and must continue to perform its obligations in accordance with the agreement as varied. Subject to the foregoing, this agreement may not be varied except by a written document executed by all parties.
19. Entire agreement and precedence
(a) This agreement, together with any Proposal in connection with this agreement, sets forth the entire agreement between BAPL and the Customer with respect to all matters covered herein. The documents comprising this agreement shall be read in the following order of precedence:
1. these terms and conditions;
2. the Proposal; and
3. any document referred to in the Proposal.