THIS AGREEMENT IS MADE BETWEEN:
F4S Australia Pty Ltd ACN 607 571 086 of Suite 401, 150 Liverpool St, Darlinghurst NSW, 2010, Australia (“F4S”);
for access to and the use of any of the Services
BY SELECTING “I ACCEPT”, PAYING FOR OR USING ANY OF THE SERVICES, STARTING THE QUESTIONNAIRE, REQUESTING A USER TO COMPLETE A QUESTIONNAIRE OR USING THE API, AND WHETHER OR NOT YOU HAVE PAID OR ARE PAYING A FEE FOR SUCH, YOU AGREE WITH THE FOLLOWING TERMS AND CONDITIONS AND SUCH ARE BINDING ON F4S AND YOU:
In this Agreement, unless the contrary intention appears:
Agreement means this agreement for the access to and use of the Services;
API means the F4S application programming interface;
Coaching Services means use of F4S human coaching, the artificial intelligence (AI) enabled automated coach named “Coach Marlee” and/or any other F4S coaching services including any other F4S AI enabled coach and whether in the F4S App or via Zoom, Facebook Messenger, Microsoft Teams or Slack;
Commencement Date means the date this Agreement becomes binding on the Parties as noted above;
Confidential Information means the confidential information of a Party which relates to the subject matter of this Agreement and for F4S and includes information relating to or including:
a. the design, specification and content of the Services;
b. the Questionnaire and its associated instructions;
c. its personnel, policies or business strategies
d. the terms of this Agreement; and
e. the API (which is not already in the public domain);
f. the AI coaches including that referred to as “Coach Marlee”; and
g. any algorithm and/or machine learning used by F4S in provision of any of the Services.
Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor, circuit layout and any similar rights, whether registered or not;
Paid Account means the account set up for a Subscriber by F4S where fees are payable by that Subscriber to use the Services and/or nominate others to use the Services;
Party means any of F4S, the User and/or the Subscriber, as the context dictates which parties to this Agreement, and Parties means both of the parties to this Agreement;
Questionnaire means the set of questions or subset of questions provided to the User and/or the User’s invitees to complete;
Services means as follows:
A. for each User:
• the assessment and measurement of attitudes and motivations of that individual (known as people analytics data);
• benchmarking the attitudes and motivations of that individual against attitudes and motivations of sample populations and other individuals (known as benchmarking results against Success Factor Models);
• motivational data and benchmarking results of connections of that individual;
• motivational data and benchmarking results of groups or workspaces and team members of groups or workspaces and teams the individual is a member of;
• suggestions for further development and recommendations for dealing with any blind spots identified;
• Coaching Services whether in person or via Zoom, Coach Marlee or similar and/or other virtual technologies; and/or
• access to connections and motivational data and benchmarking results with others inside the platform..
• access to F4S Insights and any other online artifact or analysis, data, comparison or text that is derived from the User’s data and assessment results and/or the results of the User’s connections
• access to any integrations of F4S and other services including, but not limited to: Zoom, Google Chrome Browser, Slack.
B. subject to (c) below, for each Subscriber all of the above User Services and:
• the ability to add Users to a workspace or team over the number of Users permitted by F4S without fees; and:
• the ability to invite Users over the number of Users permitted by F4S without fees to be invited by another User to complete a Questionnaire;
C. for each Subscriber, any additional services it agrees with F4S and pays additional fees for;
D. where registered for, the Coaching Services; and
E. all deliverables including analysis, reports, data, comparisons, recommendations and the like created, made available or provided to the User under this Agreement and/or as part of any of the Services provided to them;
Subscriber means a User (including any entity) which has accepted the terms of this Agreement and any additional Subscriber terms as part of establishing a Paid Account in order to be able to invite more nominated Users to access the Services than are permitted by F4S without fees to join a workspace or team or be invited to do a Questionnaire and which pays F4S fees to do so; and
User means a person (including any entity), whether or not they are also a Subscriber, who of their own volition wishes to or who is requested by another User or who requests someone to complete a Questionnaire, whether or not such is actually started or completed who has accepted the terms of this Agreement.
In this Agreement, unless the contrary intention appears:
• the clause headings are for ease of reference only and must not be relevant to interpretation;
• a reference to a clause number is a reference to its subclauses;
• words in the singular number include the plural and vice versa;
• words importing a gender include any other gender;
• a reference to a person includes bodies corporate and unincorporated associations and partnerships; and
• where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
1. Obligations of F4S
F4S will provide the User and Subscriber with access to and use of the relevant Services and any necessary information for the purposes of accessing and/or using those Services.
2. License and Commencement
3.1 Subject to the terms of this Agreement, F4S grants (“License”) to each User a non-exclusive, non-transferable right and limited right to access, use and limited right to invite others to access and use the Services specified as applicable to Users for their own personal/internal use only and, for each Subscriber, to access to and use the additional Services specified as applicable to Subscribers for their own personal/internal use only on the basis of a non-exclusive, non-transferable right and right to invite others to access and use the Services commensurate with the amount of fees paid to F4S.
3.2 The Services may only be used by the User strictly in accordance with the terms of this Agreement and the License.
3.3 Except to the extent expressly permitted in this Agreement or authorised by F4S in writing, the Userwill not copy, use, disclose, alter, modify, reverse engineer, transfer or reproduce any of the Services or the Confidential Information of F4S.
3.4 In addition to any other remedies available to F4S under this Agreement, the unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of any of the Services or the Confidential Information of F4S will entitle F4S to pursue any available equitable remedy against the User.
3.5 The User acknowledges that there is no transfer of title or ownership or any of the Intellectual Property Rights in or to any of the Services, the Confidential Information of F4S, the API and/or any products of F4S.
3.6 The License granted in clause 3.1 is conditional on the User not (and the User is prohibited from) making any of the Services or the API available for the benefit of anyone (other than its permitted Users), renting, sub-licensing, re-selling, assigning, distributing or otherwise exploiting the Services or the API, using any of the Services or the API to build a competitive service or product, altering or removing any proprietary trade mark or copyright notice or otherwise using the Services in a manner that interferes with or disrupts the integrity or performance of the Services.
4. Conditions of Use
4.1 The User may only access and use the Services and/or the API in accordance with the normal operating procedures as notified by F4S, the terms of this Agreement and any written directions or code of conduct issued by F4S.
4.3 The User consents to and agrees that F4S may use any information (including personal information) or data gained or collected as a result of access to or use of the Services and/or the API by the User:
• for the analysis and comparison to third party users, any other data and for any other data analysis;
• for analysis and/or use by third parties including the User that requested them to undertake the Questionnaire;
• to recommend other F4S services or products to the User including by email, assuming you have opted in to receive electronic marketing, unless advised otherwise through the unsubscribe link on the email correspondence; and
4.7 The User agrees to comply with any rules, written directions or codes of conduct relating to any of the Services and/or the API, as the case may be, issued or as specified by F4S from time to time.
The User will ensure that access to the Services, the API and the Confidential Information of F4S are protected at all times from misuse, damage, destruction and from any unauthorised use..
6. Australian Consumer Law
The Australian Consumer Law (“ACL”) provides guarantees for goods and services that cannot be excluded (“Statutory Guarantees”). Nothing in Agreements purports to modify or exclude any Statutory Guarantees and conditions and warranties and any other legal rights that The User/Subscriber may have available under the ACL. Any and all other warranties and conditions which are not guaranteed by the ACL are, where permitted by law, expressly excluded.
7. Refunds and Additional Subscriber Terms
If the User cancels a subscription, they will not receive a refund or credit for any amounts that have already been billed or paid for. A User can stop using the Services and/or cancel your subscription at any time via their account settings or contacting F4S. If you cancel your subscription you will not be entitled to a refund of any fees already paid and any outstanding fees will become immediately due and payable. In the event of termination of a subscription for cause due to default by F4S, F4S shall refund, on a prorated basis, any prepaid fees for the Services for the period beginning on the effective date of termination through the end of your then-current subscription. In the event of a termination of a subscription to a violation by the User, the User will not receive any refund and shall immediately pay any outstanding fees for the remaining period of the subscription or otherwise. The Subscriber will comply with any additional terms relating to their Paid Account as notified to the Subscriber, including as to payment of fees and taxes.
8. Additional API Terms
8.1 For those Users which register for and are provided access to the API, F4S grants to you a non-exclusive, non-transferable, royalty-free license to use the API to integrate the services into your environment and, subject to clauses 3.6 and 8.2, your services and products in accordance with the terms of this Agreement.
8.2 The Subscriber:
a. is responsible for the accuracy and legality of all content that it enters through and receives via the API;
b. must only use the API in accordance with this Agreement and any additional requirements of F4S posted on any of the Sites or notified to the Subscriber by F4S;
c. must only use the API in accordance with the API documentation available at https://app.swaggerhub.com/apis-docs/F4S-API/public/1.0.0 ;
d. must not use the API in any way that adversely affects the performance or function of the API;
e. must not post or transmit information or materials that may violate the rights of any third party or which contains a virus or other harmful component; and
f. must not reverse engineer, decompile or disassemble the API..
8.3 The Subscriber is liable for the use of the API by any third party to which it provides access to the API or services or products using the API, as though such use was by the Subscriber, and indemnifies F4S against any loss, cost, expense, damage, claim, demand, action or proceeding arising out of any failure by a third party to comply with the terms of this Agreement.
9. Additional Coaching Terms
9.1 The Coaching Services are provided to assist you to develop and grow your skills in and understanding of the particular area(s) of that coaching. They are not (and should not be relied on as) advice of any kind. In particular and without limitation, the Coaching Services are not in any way a mental health assessments, diagnosis or advice. If you are suffering any anxiety, depression or other mental health or other health complaint you should urgently seek the assessment and advice of a qualified health practitioner.
9.2 Any User using the Coaching Service also agrees to the additional terms relating to such use provided to them or referred to when registering for Coaching Services;
10.1 The User must not, without the prior written approval of F4S, disclose the Confidential Information of F4S unless and except as specifically permitted by this Agreement..
10.2 The User may only use any analysis comparisons, advice and recommendations provided by F4S as part of the Services for their own personal or internal use.
10.3 The User will not be in breach of clause 10.1 in circumstances where it is legally compelled to disclose such Confidential Information.
10.4 This clause will survive the termination of this Agreement.
11. Intellectual Property Rights
11.1 F4S will indemnify the User against liability under any final judgment in proceedings brought by a third party against the User which determines that the use of the Services and/or the API in accordance with the terms of this Agreement or any written directions of F4S constitutes an infringement in Australia of any third party’s Intellectual Property Rights.
11.2 F4S will not be required to indemnify the User as provided in clause 11.1 unless the User:
• notifies F4S in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
• gives F4S the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
• provides F4S with reasonable assistance in conducting the defence of such a claim; and
• permits F4S to modify, alter or substitute the infringing part of the Services or API at its own expense in order to avoid continuing infringement or authorises F4S to procure for the User the authority to continue the use and possession of the infringing Services or the API.
11.3 F4S will not indemnify the User to the extent that an infringement, suspected infringement or alleged infringement arises from:
• use of the Services or the API in combination by any means and in any form with other goods or services not specifically approved by F4S;
• use of the Services or the API in a manner or for a purpose not expressly provided for in this Agreement or in contravention of any rules, directions or code of conduct or not otherwise authorised by F4S in writing;
• modification or alteration of the Services or the API without the prior written consent of F4S; or
• any transaction entered into by the User relating to the Services or the API without F4S’ prior consent in writing.
11.4 The User will indemnify F4S against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
• the claim arises from an event specified in clause 11.3; or
• the ability of F4S to defend the claim has been prejudiced by the failure of the User to comply with any requirements of clause 11.2.
12. Liability of F4S
12.1 Subject to the Statutory Guarantees, the maximum aggregate liability of F4S to the User in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect or in the provision of the Services, the API or any other goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of F4S to comply with its obligations under this Agreement will be the greater of US $100 and the total fees paid for the Services.
12.2 The User will at all times indemnify and hold harmless F4S and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
• a breach by the User of its obligations under this Agreement; or
• any willful, unlawful or negligent act or omission of the User.
12.3 In respect of any claim between the Parties under or in connection with this Agreement, the Parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2002 (NSW) and of any laws having a similar effect are excluded and have no application or effect insofar as any of them would apportion liability to F4S which would not have been so apportioned but for such laws.
Without limiting the generality of any other clause in this Agreement, F4S may terminate this Agreement immediately by notice in writing. If notice is given to the User pursuant to this clause F4S may, in addition to terminating the Agreement:
• cease providing and/or providing access to the Services;
• repossess any documentation and associated information in the possession, custody or control of the User containing any Confidential Information of F4S;
• be regarded as discharged from any further obligations under this Agreement; and
• pursue any additional or alternative remedies provided by law.
14. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
15. Assignment and Novation
The benefit of this Agreement may not be assigned nor may the Agreement be novated by the User without the written consent of F4S.
16.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by the Party waiving such rig
16.2 A waiver made by F4S pursuant to clause 16.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the User.
16.3 Subject to this clause, any failure by F4S to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by F4S to The User, will not be construed as a waiver of the rights of F4S under this Agreement.
The provisions of this Agreement may not be varied, except by agreement in writing signed by the Parties.
Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives must be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators Australia. During such arbitration, both Parties may be legally represented.
19. Survival of Agreement
19.1 Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but must not enure to the benefit of any other persons.
19.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement will remain in full force and effect following the expiration of the Agreement
20. Governing Law
This Agreement will be governed by and construed according to the laws of the State of New South Wales, Australia.
21.1 Notices under this Agreement may be delivered by hand or by registered mail to the registered physical address of the receiving Party and/or by email to the receiving Party’s email address notified as part of the initial sign-up/registration process. It is the User’s responsibility to ensure that their physical and email addresses are up to date.
21.2 Notice will be deemed given:
• in the case of hand delivery, on written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
• in the case of posting, three days after dispatch by registered mail; and
• in the case of email, on the day sent to the receiving Party’s email address.