THIS AGREEMENT IS MADE BETWEEN:
Fingerprint 4 Success Pty Ltd ACN 607 571 1086
of Level 12, 50 Carrington Street, Sydney NSW, 2000, Australia (“F4S
You (the “User”)
for access to and the use of the Services.
BY THE USER SELECTING “I ACCEPT”, PAYING FOR THE SERVICES OR STARTING THE QUESTIONNAIRE, THE USER AGREES WITH THE FOLLOWING TERMS AND CONDITIONS AND SUCH BECOME BINDING ON F4S AND THE USER:
In this Agreement, unless the contrary intention appears:
Agreement means this agreement for the access to and use of the Services;
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; and
d. the terms of this Agreement;
Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor, circuit layout and any similar rights, whether registered or not;
Questionnaire means the set of questions provided to the User and/or the User’s invitees to complete;
Party means either F4S or the User, as the context dictates;
Services means as follows:
a. for each User who completes the Questionnaire:
the assessment and measurement of attitudes and motivations of that individual;
the assessment and measurement of the attitudes and motivations of the co-founders, team members and other connections of that individual;
benchmarking the attitudes and motivations of that individual against attitudes and motivations of sample populations and other individuals;
suggestions for further education, advice and recommendations for dealing with any blind spots identified;
access to connection with others inside the social network and/or to share insights; and
b. all deliverables including analysis, reports, data, comparisons, advice, recommendations and the like created, made available or provided to the User under this Agreement and/or as part of any services provided to the User.
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.
2. Obligations of F4S
F4S will provide the User with access to and use of the Services and any necessary information for the purposes of accessing and/or using the Services.
3. Obligations of F4S
Subject to the terms of this Agreement, F4S grants to the User a non-exclusive, non-transferable and non-sublicensable right to access and use the Services for personal use only (“License”).
The Services may only be used by the User strictly in accordance with the terms of this Agreement and the License.
Except to the extent expressly permitted in this Agreement and authorised by F4S in writing, the User will not copy, use, disclose, alter, modify, reverse engineer, transfer or reproduce any of the Services or the Confidential Information of F4S.
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.
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 and/or any products of F4S.
4. Conditions of Use
The User may only access and use the Services 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.
The User consents to and agrees that F4S may use any information (including personal information) or data gained or collected as a result of the User’s access to or use of the Services:
for the analysis and comparison to third party users and any other data;
for analysis and/or storage by third parties;
to recommend other F4S services or products to the User including by email, unless advised otherwise through the unsubscribe link on the email correspondence; and
The User agrees to comply with any rules, written directions or codes of conduct relating to the Services issued or as specified by F4S from time to time.
The User will ensure that access to the Services 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 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.
The User must not, without the prior written approval of F4S, disclose the Confidential Information of F4S unless specifically permitted by this Agreement.
The User may only use any analysis comparisons, advice and recommendations provided by F4S as part of the Services for personal use.
The User will not be in breach of clause 7.1 in circumstances where it is legally compelled to disclose such Confidential Information.
This clause will survive the termination of this Agreement.
8. Intellectual Property Rights
F4S will indemnify the User against liability under any final judgment in proceedings brought by a third party against the User which determine that the User's use of the Services 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.
F4S will not be required to indemnify the User as provided in clause 8.1 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 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 Documentation.
F4S will not indemnify the User to the extent that an infringement, suspected infringement or alleged infringement arises from:
use of the Services in combination by any means and in any form with other goods or services not specifically approved by F4S;
use of the Services 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 without the prior written consent of F4S; or
any transaction entered into by the User relating to the Services without F4S’ prior consent in writing.
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 8.3; 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 2.
9. Liability of F4S
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 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.
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 wilful, unlawful or negligent act or omission of the User.
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 10.1 F4S may, in addition to terminating the Agreement:
repossess any Documentation and associated information in the possession, custody or control of the User;
be regarded as discharged from any further obligations under this Agreement; and
pursue any additional or alternative remedies provided by law.
11. 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.
12. 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.
No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party.
A waiver made by F4S pursuant to clause 13.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the User.
Subject to clause 13.1, 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.
16. Survival of agreement
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.
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.
This Agreement will be governed by and construed according to the law of the jurisdiction of New South Wales.
Notices under this agreement may be delivered by hand or by registered mail to the registered address of F4S and the User’s physical 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.
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