1.1 This EULA concerns the rights of Customers to use and access the Services known as Business Propel.
1.2 Business Propel comes in three versions, Business Propel Professional, Business Propel Premium, and Business Propel Free. Each version has differing functionality and rights of use.
1.3 Business Propel Professional includes a right to grant a Customer one or more Business Propel Premium non-exclusive, non-assignable licences (on the terms of this EULA), in each case, subject to the payment to us of applicable Fees and up to the applicable maximum number of EULAs as we may allow (as the case may be).
1.4 Business Propel Free has less functionality but does not require the payment of Fees.
1.5 Irrespective of the version, the Services include access via the Platform to Diagnostic Assessment tools to assess one’s business, generate Diagnostic Reports to make plans for such business, and track progress. You will also have access to news and articles.
1.6 This EULA comprises Product + Services Conditions for the purposes of the Platform Access Conditions.
2. AUTHORITY + LICENCE
2.1 We authorise you (through the relevant Authorised Person only) to access and use the Services for the Term in consideration of the payment to us (directly or indirectly) of applicable Fees.
2.2 For the avoidance of doubt, the above licence entitles only Authorised Persons of a single Customer to access and use the relevant Services.
2.3 This authority and licence starts on the Commencement Date and ends:
2.3.1 upon expiry of the Term (unless otherwise extended); or
2.3.2 pursuant to clause 11 (Termination).
2.4 You may during the Term (subject to clause 10 (Intellectual Property), and any other applicable constraints or restrictions, including those we may subsequently impose at our discretion):
2.4.1 (if you are a Business Propel Professional level Customer) search, view, copy, download, customise and print out material containing Know-How for your own business or for the business of a client of your business; or
2.4.2 (if you are a Business Propel Premium or Business Propel Free level Customer)
search, view, copy, download, customise and print out material containing Know-How for your own business only, to the extent that material is offered in accordance with the version of the Platform available to you.
2.5 We grant you during the Term a non-exclusive, non-transferable right and licence to access the Services in accordance with this EULA. Such rights depend upon the version applicable to you in respect of which Fees have been paid.
2.6 You may not modify, copy, enhance, adapt or merge the Software with other software or otherwise use the Software other than expressly allowed by this EULA, or with our prior written consent.
2.7 You must not do or permit the following:
2.7.1 assign or transfer any of your rights under this EULA or (subject to such rights as may be given from time to time) grant sub-licenses of any of your rights under this EULA;
2.7.2 subject to such rights as may be given from time to time, or as contemplated above, permit or assist a third party to use the Know-How or Software or provide it to a third party directly or indirectly;
2.7.3 duplicate, modify, adapt, disclose or distribute any portion of the Software;
2.7.4 reverse engineer or decompile the Software or any part of it, except where permitted by law;
2.7.5 create or attempt to create the source code or any part of it from the Software or from any other information, except where permitted by law;
2.7.6 use or permit the use of the Software or Services to provide any form of bureau service, third party training or for similar activities;
2.7.7 exploit the Know-How or Software other than as expressly permitted by this EULA;
2.7.8 distribute, disclose, market, rent, lease to any third party any portion of the Know-How or Software; or
2.7.9 attempt to create any know-how or software which has features or functionality the same as or similar to the features and functionality of the Know-How and Software.
2.8 Unless we otherwise notify in writing, you may not use the Services unless you have (or another person on your behalf has) paid in full for the Services as applicable to the relevant version of Business Propel.
3. YOUR ACKNOWLEGEMENTS
3.1 We try to ensure that the Services are up-to-date at the date of use (or in the case of Know-How, at the date of publication). We do not represent or warrant that the Services will be reliable, accurate or complete, nor do we accept any responsibility arising in any way from errors or omissions and we make no commitment to update the Know-How.
3.2 The Services may incorporate materials from third parties. You agree that we are not responsible for, and we make no warranties in respect of, examining or evaluating the Services or accuracy. To the full extent permitted by law, we do not accept any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or breach the rights of any other person and that we are not in any way responsible for any such use by you.
3.3 We do not undertake any obligation to consider whether any information provided through the Services is either sufficient or appropriate for your circumstances.
3.4 The Services may include archived information and resources, which may be incorrect or out-of-date.
3.5 We are not required to provide any support services in respect of, or to update or provide, new releases of any software in relation to the Services. We are not required to ensure or maintain any compatibility with any particular hardware or software. The Services are provided “as is”.
3.6 You acknowledge that the Services do not provide legal, financial or accounting advice nor are they a substitute for the same and are provided for your information only. You should make your own enquiries and take independent professional advice tailored to your specific circumstances prior to making any decisions in respect of the Services.
3.7 You acknowledge that by using the Services, you consent and agree that we:
3.7.1 may collect and use Customer Data about you and your use of the Services; and
3.7.2 may collect, use, transmit, process and maintain information related to your account and any devices or computers registered or used for the purposes of providing or receiving the Services.
3.8 To the extent permissible by applicable law, we do not guarantee or warrant that any content or data you may store or access by your use of the Services will not be subject to inadvertent damage, corruption, loss, delayed access or removal and, subject to clause 9, we shall not be responsible should such damage, corruption, loss, delayed access or removal occur.
4. YOUR OBLIGATIONS
4.1.1 copy, print out or otherwise reproduce any material relating to any part of the Services, except as permitted under this EULA or authorised by us in writing;
4.1.2 make any part of the Services available to anyone, except as permitted under this EULA or authorised by us in writing;
4.1.3 alter any part of Services;
4.1.4 reproduce, distribute or re-transmit any of the Services in any material form;
4.1.5 upload and/or repost the Services to any other site or online location; or
4.1.6 "frame" the Services with other material on any other website or location, online service or bulletin board.
4.2 You must ensure that nobody, other than Authorised Persons, accesses the Services using accounts created for you.
4.3 You are solely responsible for the appropriate use of the Services for your own use. You are responsible for configuring your own information technology, devices, hardware and software (including web browsers) in order to access the Services.
4.4 You must:
4.4.1 protect the Services and Software from misuse, damage, destruction or any unauthorised use;
4.4.2 supervise and control the use of the Services and Software in accordance with the terms of this EULA; and
4.4.3 if requested by us, issue a notice in a form approved by us or a relevant third party advising of your obligations under this EULA and requiring third parties to take any steps necessary to enable you to comply with those obligations.
4.5 You agree to indemnify us and keep us indemnified from any loss, liability, damage, claim or expense which we may directly or indirectly suffer or incur in consequence of:
4.5.1 your breach of this EULA; and
4.5.2 any breach of any law or obligation by you in respect of the Services, including obligations relating to privacy or data protection.
5. USE OF BUSINESS PROPEL
5.1 Notwithstanding any other provision in this EULA, we may:
5.1.1 change, suspend, remove, or disable access to Business Propel or any part of the Services at any time without notice. In no
event will we be liable (subject to clause 9) for making these changes;
5.1.2 impose limits on the use of or access to certain or all features or portions of the Business Propel in any case and without notice or liability; or
5.1.3 withdraw Business Propel and prevent your use at any time without notice.
5.2 You must comply with the Platform Access Conditions from time to time in force.
5.3 If you fail, or we suspect on reasonable grounds that you have failed, to comply with any of the provisions of this EULA or Platform Access Conditions, we, at our sole discretion, without notice to you may preclude access to or rights of use in respect of Business Propel (or any part).
6. FEES PAYABLE
6.1 You must pay to us all Fees when required.
6.2 If we do not receive the required payment within the specified time period, we may withhold the Services and suspend any rights granted under this EULA until such payment is received.
6.3 Interest on any unpaid amount shall accrue at the rate of 1.5% per month during the period of non-payment, or such lower maximum rate as permitted by law.
6.4 We may pay commissions or other amounts in connection with the grant of this EULA to you.
7. AUDIT RIGHTS
7.1 On request, you must verify to us in writing that the Services have been used by you in accordance with this EULA.
7.2 You must at your cost, assist us in connection with any audit concerning your compliance.
7.3 The rights of audit extend to inspecting your files, computer processors, information technology equipment, software and facilities (including those of your Related Bodies Corporate) wherever situate and you grant us all rights of access as may be required or appropriate to give effect the provisions of this clause 7.
7.4 If, following an audit we reasonably determine that additional, further or revised Fees to use the Services are payable, you agree to pay us for such additional Fees appropriate for your actual use of the Services, together with the costs of the audit.
8. WARRANTIES + REPRESENTATIONS
8.1 Subject to the provisions of this EULA, we warrant that your permitted use of the Services will not infringe upon any person’s Intellectual Property Rights.
8.2 We do not (subject to clause 9 and any relevant laws) warrant that:
8.2.1 the Services are error-free or that such errors or defects may be corrected;
8.2.2 use of or performance of the Services will be uninterrupted;
8.2.3 the functions of the Services will operate in combinations selected by you; or
8.2.4 the results obtained from the Services will be in accordance with your expectations.
9. STATUTORY GUARANTEES + LIMITATION OF LIABILITY
9.1 Certain laws, including the Competition and Consumer Act 2010 (Cth) contain statutory rights in relation to goods and/or services (collectively, the consumer guarantees).
9.2 Nothing in this EULA excludes, restricts or modifies or purports to have the effect of excluding, restricting, limiting or modifying any condition, warranty, term or consumer guarantee or our liability under any such condition, warranty, term or guarantee to the extent the same cannot be excluded, restricted or modified by law.
9.3 Subject to clause 9.2, we do not give any guarantee, indemnity or warranty or make any representation of any kind, express or implied, with respect to the supply by us of any goods or services to any person, except as expressly set out in clause 8.1 of this EULA.
9.4 Subject to clause 9.2, our aggregate liability to you under or in connection with this EULA, however arising, is limited at our option to:
9.4.1 in the case of goods - the replacement of the goods, the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods; or
9.4.2 in the case of services - the supplying of the services again or the payment of the cost of having the services supplied again.
9.5 In no circumstances will we be liable to you or your successors in title or permitted assignees for Consequential Loss arising out of, in connection with or relating to the performance, breach, termination or non-observance of this EULA.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You must notify us in writing if you become aware of:
10.1.1 any infringement of any of our Intellectual Property Rights;
10.1.2 any defect in the Services or Software; or
10.1.3 any material matters that may be of concern to us concerning the Services or this EULA which come to your attention.
10.2 You acknowledge:
10.2.1 that our exclusive right, title and interest in and to any and all Intellectual Property Rights embodied in or pertaining to the Services and associated materials, including any enhancements, Modifications and derivative works, shall at all times be and remain our exclusive property; and
10.2.2 that you have no rights whatsoever in or to any such Intellectual Property Rights, except in relation to material or content that is created by you under the rights afforded to you at clause 2, but only to the extent that the material or content created by you is substantially different from any material or content available to you as part of the Services.
10.3 Subject to the provisions of this EULA, all rights, including but not limited to all Intellectual Property Rights related to or arising in respect of or concerning the grant of EULAs, the Services and our business (collectively, Relevant Rights), are expressly reserved to us and you must not use the Relevant Rights without our prior written consent. You shall acquire no Relevant Rights and must not claim ownership of or a right to use any Relevant Rights in any form or manner.
10.4 You must not do anything that will or is likely to damage or diminish the Relevant Rights or the reputation of NSW Business Chamber and its Affiliated Entities.
10.5 You must not remove any copyright, attribution or trade mark notices contained on the material available to you as part of the Services unless you have our written consent.
10.6 You must comply with all restrictions as may be applied to your access and use of the Services depending on the version of Services that you have access to, or as otherwise applied to you by us.
11.1 We may immediately terminate this EULA by notice in writing to you if:
11.1.1 you fail (or a relevant person on your behalf fails) to pay any sum payable under or in respect of this EULA, on or before the due date for payment of that sum;
11.1.2 we decide to withdraw the Services;
11.1.3 we end an applicable trial, evaluation period, or your right to use Business Propel Free; or
11.1.4 you breach any term of this EULA and you do not remedy the default or breach (if capable of remedy) to our full satisfaction within 7 days after your receipt of a notice from us specifying the relevant breach.
11.2 Upon termination of this EULA neither party will have any further obligations under this EULA other than:
11.2.1 in respect of any liability for antecedent breach; or
11.2.2 any liability in respect of provisions of this EULA which are expressed to continue in full force and effect notwithstanding termination.
11.3 Upon Termination of this EULA, you must immediately:
11.3.1 cease to use the Services;
11.3.2 destroy all copies of log-in details and passwords; and
11.3.3 promptly take such further steps as we may require to vest in us all our Intellectual Property Rights.
11.4 The following clauses of this EULA shall continue in full force and effect notwithstanding termination of this EULA: clauses 3 (your acknowledgements), 7 (audit rights), 9 (statutory guarantees + limitation of liability) 10 (intellectual property rights), 11.2 to 11.4 inclusive (termination), 12 (assignment), 13 (governing law) and 14 (definitions).
12.1 You may not assign, dispose of or otherwise transfer this EULA or any rights or obligations under this EULA without our prior written permission.
12.2 We may assign, in part or in full, our rights under this EULA without your consent.
12.3 Subject to this clause 12, this EULA shall be binding on the parties and their respective successors and permitted assigns.
13. GOVERNING LAW
This EULA is governed by the laws of New South Wales which shall have non-exclusive jurisdiction with respect to any disputes.
14.1 Personal pronouns: Except where the context otherwise provides or requires:
14.1.1 the terms we, us or our refers to NSW Business Chamber (or its assignee); and
14.1.2 the terms you or your refers to the relevant Customer.
In this EULA, unless the context otherwise requires or provides:
Affiliated Entities means NSW Business Chamber's subsidiaries, affiliates, associated entities and relevant partners as the case may be or the context requires from time to time.
Authorised Person means the relevant named nominees of the Customer who have been accepted by us from time to time as an authorised user of Business Propel Professional, Business Propel Premium, or Business Propel Freemium via the Platform on behalf of the relevant Customer.
Business Propel means the service offered via the Platform known as Business Propel (in Professional, Premium, and Free versions) comprising, as the case may be, the Diagnostic Assessment resulting in a Diagnostic Report, with ancillary and related content, functionality, materials, know-how and other attributes from time to time which is made available under licence from NSW Business Chamber via the Platform.
Commencement Date means the date you are first issued with a valid unique username and password (or the date the same is extended for use for a further period), pursuant to a Notification Form, or otherwise, as may be applicable.
Consequential Loss means any indirect, consequential, special or incidental loss or damage suffered by a party to this EULA including loss of profits, revenue, loss or corruption of data, goodwill, bargain, opportunities and loss of anticipated savings or other such loss or damage which may fairly and reasonably be considered not to arise naturally, that, is not according to the usual course of things, from the breach or other act or omission giving rise to the relevant liability.
Customer means customers who have acquired (subject to payment of relevant Fees to us directly or indirectly) a right of use under this EULA. This includes users of Business Propel Free.
Diagnostic Assessment means the macro and micro business diagnostic and assessment functionality of Business Propel.
Diagnostic Report means the report produced as an output of use of the Diagnostic Assessment, which may include advice, action plans and business plans.
EULA means this End User Licence Agreement for use of Business Propel on the Platform by Customers (including for these purposes the Authorised Persons in respect of such Customers).
Fees means the licence fees payable from time to time for the use by you of the Services.
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trademarks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Know-How means know-how provided by us to you by use of the Services comprising a comprehensive library of news and articles.
Material means any software, hardware, firmware, equipment, tools, methodology or process, data, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions.
Modification means, in relation to the Software, any adaptation or derivative of the Software within the meaning of the Copyright Act 1968 (Cth).
Notification Form means a document or process (including electronic) in such form from time to time determined by us.
NSW Business Chamber means NSW Business Chamber Limited ABN 63 000 014 504 (trading as Australian Business Consulting & Solutions) of 140 Arthur Street, North Sydney, NSW 2060.
Platform Access Conditions means the terms and conditions of access to the Platform and any additional terms, conditions, notices and disclaimers displayed elsewhere on the Platform, as amended from time to time.
Platform means our website at businesspropel.com.au, including its sub-domains, provided or operated by us for the purposes of providing the Services to you.
Related Bodies Corporate means as defined in the Corporations Act 2001 (Cth).
Services means our business diagnostic tool and related services known as Business Propel that we provide via the Platform, which comprises access to and provision of the Diagnostic Assessment, Diagnostic Reports and Know-How using the Software.
Software means the software provided by us or by our suppliers which enables you to use the Services.
Term means, from the Commencement Date, the period specified in the relevant Notification Form or if a period is not specified in the Notification Form, the period ending on the date which is 12 months after the Commencement Date.