Subscription Terms & Conditions
Subscription Agreement Terms and Conditions
PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY APPLYING FOR THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AS FROM THE DATE YOU APPLY TO FOR THE SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT PROCEED WITH YOUR SUBSCRIPTION.
These are the standard Terms and Conditions of Subscription which apply to a Subscription to the Service, owned and operated by (MYP, we, us and our), by you and your agents, sub-contractors and permitted assigns (You and Your).
This Agreement applies in addition to and does not derogate from any other terms and conditions that expressly apply to use of the Website, or any other product or services accessed or supplied from, on via or by MYP or the Website.
Operative Provisions
1. Obligations of MYP
I. During the Term, MYP will:-
a. provide You with a non-exclusive, non-transferable revocable Subscription to access and use the Service for the Subscription You have Applied for, through use of Your Account:-
i. for the purposes of providing business analysis, reporting, strategy, data and information MYP provides no warranty as to the reliability, accuracy, completeness or timeliness of the Service, the Results, or the Material;
ii. for the purpose of providing access to a Business System or Business Systems used by You;
iii. subject to and conditional upon You:-
a. accepting, without alteration, this Agreement; and
b. fulfilling Your obligations set out in clause Obligations of Subscriber of this Agreement;
b. in respect of Your Personal Information:
i. retain and protect Personal Information provided by You in accordance with the Privacy Policy; PROVIDED that MYP may be legally required to disclose that Personal Information in some circumstances (please refer to our Privacy Policy);
ii. use Personal Information collected about You for the purposes of:-
a. access to and use of the Service by You;
b. where You are a member of a Group, providing access to and use of the Service by the Group;
c. providing customer support and other similar activities related to the Service; and
d. keeping You informed of products, services, offers and upcoming events and to improve our services;
iii. not use Your Personal Information for on-selling to list brokers;
iv. be entitled, without notice or liability to You, to inhibit access to the Service if any government authority so requires or requests;
v. be entitled, from time to time on reasonable notice to You, to schedule downtime for maintenance, upgrading, testing or repair of any component of the Service or the Website without liability to You;
vi. be entitled, in its sole discretion [and where reasonably necessary to protect its legitimate business interests], to modify, remove, reconfigure, discontinue, replace, substitute, upgrade or enhance any function, component of, or feature of, or information provided through the Service or on the Website, including the content, hours of availability, pricing, equipment required for access or this Agreement, without any liability to Where possible, we will advise you of any significant changes by putting updates on our website; and
vii. be entitled, upon notice in writing to You, to assign this Agreement or any right or obligation under it, to any other party at its own discretion, or to sub-contract the performance of any of its obligations hereunder.
2. Obligations of Subscriber
I. During the Term, You will, for the Subscription You have Applied for:
a. be solely responsible for selecting, supplying, configuring and maintaining, at Your own expense, all computers, hardware, software, modems and similar which are necessary to access the Service, including any connection to the internet, and all associated telephone lines and telecommunications services;
b. with respect to the Service:-
i. not make, and take all steps necessary to prevent others from making, Unauthorised Use of the Service, and whenever we ask, use reasonable endeavours to assist MYP to identify and prevent Unauthorised Use;
ii. maintain adequate security measures to safeguard the Service from access or use by unauthorised persons, including maintaining security of Your Account and taking all other reasonable measures to limit access to the Service to authorised users;
iii. ensure You have sufficient protection in place, at Your own expense, to protect the Service against Attack and to prevent circulation of Attacks through the Service, including firewalls, policies regarding email attachments, and up to date virus scanning software;
iv. comply, at Your own expense, with all applicable data protection, privacy, export and spam laws, restrictions and regulations, and refrain from directly or indirectly using the Service in violation of any such restrictions, laws or regulations;
v. ensure, at Your own expense, that all commercial messages sent out via MYP comply with all requirements of all relevant Spam legislation (such as the Spam Act 2003 in Australia) including, if required, that these messages:
a. are sent only with ‘expressed consent’ or ‘inferred consent’;
b. always contain the correct legal name of the organisation or individual, and a Business Number (if applicable) and how they can be contacted;
c. always contain a functional ‘Unsubscribe’ facility.
c. if You have Applied as a Subscriber:
i. with respect to Data:
a. submit the Data for the period at any time throughout the Term;
b. ensure that all Data that You submit is, to the best of your knowledge, accurate, complete, reliable and not misleading;
c. if You submit Data more than once in any calendar month, the most recent submission automatically overrides any previous submission of Data in that same month (if benchmark data);
d. use Your best endeavours to ensure that the Data You submit which entails financial details, are current for the period in which the Data is being submitted;
e. submit Data in the format, using the forms on the Website, and as directed by MYP from time to time;
f. acknowledge that the Data You submit will be aggregated and stored in databases owned and operated by MYP, at which time MYP is granted all right, title and interest in the Data as aggregated and stored in its databases;
g. acknowledge that if You fail to submit Data as required, MYP may limit Your access to the Results in a manner we decide.
ii. with respect to Results:
a. acknowledge that the accuracy, completeness and reliability of the Results is dependent upon the Data submitted by subscribers, and that MYP gives no warranty as to the accuracy, completeness or reliability of the Data or the Results;
b. only have access to and be Published the Results for the Industry Category to which You have Applied;
iii. with respect to Business Systems:
a. acknowledge that the suitability of a Business System for the purpose in which it is used by You is Your responsibility and that MYP gives no warranty as to the accuracy, completeness or suitability of the Business System or Data from the Business System;
d. with respect to maintenance, acknowledge that:-
i. satisfactory performance of the Service depends upon the suitability of Your computers, hardware, software, modems and similar, including connection to the internet, and all associated telephone lines and telecommunications services, which are Your responsibility; and
ii. any unsuitability of Your computers, hardware, software, modems and similar, connection to the internet, and associated telephone lines and telecommunications services, which causes unsatisfactory performance of the Service or any component will not exempt You from paying the Subscription Fee, nor entitle You to any discount or reduction in the Subscription Fee owing;
e. with respect to the IPR:-
i. acknowledge that nothing in this Agreement, gives You any right, title or interest in the IPR other than as specifically set out herein;
ii. notify MYP in writing of any infringement of the IPR coming to the attention of You, directly or indirectly;
iii. use or display Our logos, brands or other intellectual property only with our written approval and in a format supplied and approved by Us;
iv. acknowledge that any Improvements developed by or on behalf of You vest in MYP, or as directed by You appoint the secretary of MYP to be Your attorney to sign any document or take any action that You legally could take to more completely effect MYP’ ownership of the Improvements;
v. MYP acknowledges that where a Subscriber and/or a Partner contracts MYP to design, develop, create or construct a Business System or Business Systems, title in the contracted Business System or Business Systems, excluding MYP’s proprietary framework and the data that is associated with or entered into the contracted Business System or Business Systems, is transferred to the Business System Owner who contracted the Business System on the commercial terms specified in the contract and the MYP Partner Agreement until:
a. termination of the Subscriber’s subscription; or
b. lapse of the Subscriber’s subscription.
c. lapse or termination of their status as an MYP Partner.
In the event of either termination or lapse of the Subscriber’s subscription or MYP Partner Status, all right, title or interest in Your Business System or Business Systems transfers to MYH, unless agreed in writing by MYH or MYPCorp to the contrary;
vi. You acknowledge that where You have agreed that Your Business System will be offered for Sale or Subscription in Our Marketplace to Our current or future Subscribers, Your Business System cannot be withdrawn from Our Marketplace for Sale or Subscription at any time without Our written agreement (which will not be unreasonably withheld).
f. with respect to the Material:-
i. acknowledge that nothing in this Agreement, gives You any right, title or interest in the Material other than as specifically set out herein;
ii. only use the Material for the Services specified;
iii. subject to clause 2.1(h)(ii), not modify, copy, reproduce, publish, distribute, re-transmit, upload or repost, or attempt to modify, copy, reproduce, publish, distribute, re-transmit, upload or repost, create derivative works based upon, sell, lease, rent, licence, assign, transfer, dispose or part with possession of the Material without the prior written approval of MYP (which will not be unreasonably withheld);
g. not use, frame or utilize framing techniques to enclose Publications of the Results, including images or the content of any text or the layout or design of any page or form contained on a page on the Website, except for the services specified;
h. acknowledge that Outages may occur in relation to the Service, without notice to You and that such Outages will not entitle You to any reduction in or reimbursement of any Subscription Fee, except that you may claim the reimbursement of a proportion of the Subscription Fee that you have paid for a period to the extent that that period includes any Outage which:
i. causes the total Outages within a period of one month to exceed 48 hours; and
ii. is caused by our negligence or breach of contract;
i. adopt appropriate measures to ensure the security, secrecy and confidentiality of the Account, including log-in information and passwords, and all data transmitted by You through use of the Service, and will not disclose to any other person or entity the Account, whether in use or not, and You will be responsible for any use whatsoever of the Account, including log-in information and passwords, whether authorised or not;
j. in respect of Your Personal Information:-
i. acknowledge that MYP gives no warranty as to the guaranteed protection of Your Personal Information;
ii. provide to MYP true and accurate information;
k. use the Service in a responsible manner, taking into account the effects its use may have on other users;
l. not use or otherwise engage in any conduct in any way related to the Service, or allow anyone else to use or otherwise engage in any conduct in any way related to the Service:-
i. for any unlawful, illegal, malicious or improper purpose or to conduct or promote anything that is illegal;
ii. in any way which interferes with its availability for other subscribers or otherwise interferes in the proper operation of the Service;
iii. to disclose or misuse private or confidential information to another;
iv. to enable a minor to access material inappropriate for a minor;
v. to harass, threaten or menace any person or cause damage or injury to any person or property;
vi. to breach any laws, infringe any third party rights (including without limitation, intellectual property rights) or breach or infringe any standards, content requirements or codes promulgated by any relevant authority;
vii. to impersonate another person or use another’s name, user name, password or account without permission;
viii. to expose MYP to the risk of any legal or administrative action including prosecution under any law;
ix. to interfere with, disrupt or affect the availability of the Service, any other network or computer system or the use of any of them;
x. to result in an Attack being sent through the Service; or
xi. to attempt to do any of the foregoing;
m. not resell any component of or information provided via the Service, including the Results or the Material unless you are a subscriber or without the express permission of MYP ;
n. in relation to third party content accessed via the Website:-
i. acknowledge that many of the products and services advertised and much of the information provided on the Website and in links on the Website are the products, services and information of third parties (TP Information);
ii. acknowledge that MYP does not provide or endorse this TP Information, or the third party, and has not checked the accuracy or completeness, suitability or quality of the TP Information;
iii. make Your own enquiries with the relevant third party direct before relying on the TP Information or entering into a transaction in relation to any TP Information;
o. not assign this Agreement or any right or obligation under it.
II. You warrant:-
a. You have relied on Your own judgment and experience in entering into this Agreement;
b. that in entering this Agreement, You have not relied on any representation made by MYP other than as expressly stated in this Agreement, or on any descriptions, illustrations or specifications contained on the Website or the Material, or in any advertising material provided by MYP;
c. all information You have provided or will provide to MYP is, to the best of your knowledge, true in all respects and is not misleading;
d. You are not a minor;
e. You have the authority to, and have taken all action necessary to, enter into and perform this Agreement, including approval from any and all clients, customers, businesses and persons whose data is provided to or entered into MYP;
f. the Agreement is valid and binding on You and you are not aware of any circumstances that would make it invalid or unenforceable against you.
3. Payments
I. Subscription Fee
During the Term, You will pay the Subscription Fee to MYP by the Payment Method on the Payment Terms.
II. Variation to Subscription Fee
MYP reserves the right to adjust the Subscription Fee:-
a. to accommodate any increase in the costs associated with the Service, where those costs form part of the Subscription Fee herein;
b. on an annual basis as at 1 July each year;
c. in the event that industry resolution, law or regulation causes an increase in the cost to MYP in providing the Service; and
and You agree that by accessing the Website after a variation to the Subscription Fee has come into effect, You are deemed to have agreed to that variation. We may notify You of a variation of the Subscription Fee either by giving You specific notice (which may be through Your Homepage) or by publishing information about the variation on the Website.
d. No Refund
The Subscription Fee is not refundable under any circumstances.
4. Confidentiality
I. During the Term, and after the expiry or Termination of this Agreement, You will:-
a. be responsible for and liable to MYP for ensuring the Confidential Information is treated as confidential and kept secret and used and dealt with only in accordance with this Agreement and the directions of MYP;
b. keep the Confidential Information secure from unauthorised access, damage or destruction;
c. not reproduce or copy the Confidential Information, in whole or in part Agreement;
d. not disclose, or use, or attempt to disclose or use, any Confidential Information in any manner which may cause or be calculated to cause, injury or loss to MYP, or in any manner other than contemplated by this Agreement;
PROVIDED that You may disclose the provisions of this Agreement to Your professional advisers and where disclosure is required by law, if You provide prior notice to MYP so that MYP may take any lawful steps available to it to resist such disclose if its sees fit.
5. Training
Where a Subscriber agrees to Us conducting a training session/s for Them, the following will apply:
I. If a rollout program, then invoices will be issued on the agreed date/s over the agreed period and are payable within 7 days of If a tailored training session, then an invoice for 50% of the agreed training fee will be issued and is payable within 7 days of issue. An invoice for the balance of the fee will be issued on completion of the training session and is payable within 7 days.
II. Where multiple tailored training sessions are scheduled, the 50% balance of the training fee will be invoiced on completion of the first training session.
III. Any costs incurred to conduct training at the Subscriber’s specified venue (e.g. travel, accommodation, administration etc) will be payable by the Subscriber.
IV. Postponements made less than 48 hours prior to confirmed training dates will result in an additional 25% of training fee payment being charged by MYP Corporation as compensation for further costs incurred in rescheduling the session (preparation of documents, resetting links) as well as the lost opportunity to schedule an alternate training session in that timeslot. Subscribers who have a rollout package will be charged an additional $150 per hour of booked training that is being postponed.
V. Cancellations made less than 7 days prior to confirmed training dates will result in the 50% payment being withheld by MYP Corporation as compensation for administration work completed (preparation of documents, resetting links) as well as the lost opportunity to schedule an alternate training session in that timeslot. Subscribers who have a rollout package will be charged an additional $75 per hour of booked training that is being postponed.
VI. Changes to the training date after confirmation will result in any costs incurred being payable by the Subscriber (e.g. travel, accommodation, administration etc).
VII. An Invoice for the remaining 50% of the agreed training fee will be emailed on completion of training and is payable within 7 days.
VIII. In the event that changes in your staff during the rollout/implementation project result in additional training and/or set-up sessions to be conducted, MYP will invoice for any additional session at standard hourly rates.
6. Termination
I. Term of Subscription
Unless otherwise agreed in writing by MYP, the minimum term for a Subscription is three (3) months from the date of commencement of the Subscription. At the completion of the minimum term, the subscriber is required to give thirty (30) days notice of termination in order to terminate their subscription. All Subscription Fees are due and payable during the notice period.
II. Termination Process
The termination process is controlled by the Subscriber. Under no circumstances does MYP cancel a subscription on behalf of a Subscriber. Only the MYP Champion has access to the ‘Subscription + Training Management’ area in the system. To unsubscribe (and trigger the commencement of the thirty (30) day notice period), the MYP Champion must:
a. Log into MYP;
b. Click the menu button on the top right (three lines);
c. Select ‘Subscription + training management’;
d. Scroll down and click the ‘suspend’ button (far right) beside the relevant module/s;
e. Click ‘Submit’.
This will suspend the module for the relevant notice period (as per the Subscription Terms and Conditions). Further details are available in the online MYP Subscription + Training Management myHelp which is accessible by the Champion.
III. Suspension of Access
MYP is entitled to suspend access to the Subscription or any part of it, without any liability to MYP, immediately upon:-
a. You breaching this Agreement, including, but not limited to, allowing any sums owing pursuant to this Agreement to remain unpaid for thirty (30) days after these sums become payable;
b. becoming aware of any Unauthorised Use by You of any component of the Service;
c. any representation, warranty or statement made by or on behalf of You is or proves to be untrue or misleading in any respect when made or repeated to MYP;
MYP will only suspend access if money owing has remained unpaid for thirty (30) days after becoming payable or MYP considers the suspension reasonably necessary to protect the Service and MYP’s systems or reputation.
You will remain liable to pay the Subscription Fee during such suspension and for the Subscription Fee during the minimum term of the Subscription in the event of such a suspension. MYP will lift the suspension when the matter for which MYP imposed the suspension is resolved.
IV. Effect of Suspension for Subscribers
Where MYP has suspended access to Your Subscription as a Subscriber, MYP will retain all Data You have submitted for a period of thirty (30) days, whereupon if You:
a. comply with a notice issued pursuant to clause 3, Your access to Your Subscription will be reinstated and all Data submitted by You will be accessible in the future; or
b. do not comply with a notice issued pursuant to clause 5.3, which applies to You, MYP may Terminate this Agreement in accordance with clause 5.5, and all Data submitted by You will be inaccessible by You in the future.
V. Termination by MYP
MYP may Terminate this Agreement and the Subscription granted in it, upon:-
a. thirty (30) days after a notice issued pursuant to clause 3, which applies to You, if the notice is not complied with; and
b. immediately upon written notice to You, upon any representation, warranty or statement made by or on behalf of You, and which was material to MYP at the time it was made, is or proves to be untrue or misleading in any respect when made or repeated to MYP and was not made in good faith by You.
VI. Consequence of Termination
Upon Termination of this Agreement by either party for any reason, You will, in addition to and without prejudice to any other rights, remedies or powers which MYP might have at law, in equity or set out in this Agreement:-
a. cease to use the Subscription or any component of it;
b. if applicable, not be entitled to any further payment of the Introducer Fee;
c. if applicable, immediately cease to use and remove from any digital or physical format any logo, brand or other intellectual property that belongs to Us; and
d. not be entitled to any reimbursement or refund for any losses incurred, other than those set out herein.
VII. Data Transfer
Where a Subscription is terminated by either You as the terminated subscriber or MYP, you may provide Notice to MYP for MYP to provide a copy of Your data to you in CSV format within thirty (30) days of Your Notice and at a fee specified in writing by MYP to you within seven (7) days of Your Notice.
7. Warranties
I. MYP warrants that to the best of its knowledge:-
a. the Subscription granted in this Agreement does not infringe the intellectual property rights of any third party; and
b. it is entitled to grant the Subscription to You;
c. and agrees to defend any action brought by any third party against You based on a claim that the IPR infringes the rights of any third party; PROVIDED that:-
i. You provide MYP with prompt written notice of any claim arising, along with all other reasonable information and assistance, and on You acknowledging that MYP has:-
a. sole authority to defend or settle the claim, as it, in its sole discretion considers appropriate;
b. sole discretion to either obtain for You the right to continue using the Service or to replace or modify the relevant part of the Service so that it becomes non-infringing;
ii. the alleged infringement does not relate to changes, additions or alterations to the Service made by parties other than MYP, or use of the Service in combination with products or software not provided or approved by MYP.
d. MYP will provide the Service and Results, on an ‘as is’, ‘as available’ basis, and MYP undertakes no liability (except to the extent that any claim, action, damage, loss, liability, cost or expense suffered by the subscriber was caused or contributed to by the fraud, negligence or misconduct of MYP or of its employees, officers, agents or contractors) and gives no warranty (except to the extent it is required to so by law):-
i. as to the condition, quality or performance of the Service or any component of it, including the Data, Results or the Material;
ii. as to the accuracy, reliability, completeness, timeliness or otherwise, of the Service, the Data, Results, the content of the Website including text or graphics, or the Material;
iii. as to the continued availability to MYP of information to enable MYP to keep the Service, the Results, content of the Website or the Material up to date;
iv. in relation to defects, errors or inadequacies of any kind in the Service, the Data, the Results, Website content or the Material, or any component thereof, regarding their fitness for purpose, merchantable quality or interruptions in access to, operation of or use of any of them, either implied, expressed or imposed by statutory requirement;
v. as to the protection of Your Personal Information (except that we will take reasonable steps to protect Your Personal Information and that we will comply with relevant privacy laws and our Privacy Policy);
vi. that the laws applying in the jurisdiction where You are resident, or from which You access the Service, permit You to use the Service, the Data, the Results, content of the Website or Material, or any associated information provided through Your Subscription. You agree that it is Your responsibility to ensure that no law is violated by Your use of the Service or Website;
vii. that the Service will run properly:-
a. on the computers, hardware, software, modems and similar which are necessary to access the Service, including any connection to the internet, and all associated telephone lines and telecommunications services, which You have selected or acquired; or
b. within all network and operating system environments used by You; or
viii. that errors in the Service will be rectified;
ix. as to the accuracy, reliability or completeness of the information within the Service relating to entries made by You, including in Your Application and the Data which You submit, which You are solely responsible for entering, updating and maintaining, as to content, correctness and compliance with all laws and regulations in force from time to time, including without limitation, ensuring the information is not misleading or defamatory, and You will indemnify MYP against all loss and damage arising there from;
x. as to any service or product of any service provider offered through the Service, or the use thereof by any party;
xi. in relation to any use or interpretation made by or on behalf of You of any information received from MYP, including the Data, the Results or the Material; and
xii. as to the security of the Service, and will not be liable in the event that any Attack is distributed via the Service, or for any degradation in service, increased download or damage suffered by a subscriber as a result of any Attack.
e. MYP will take reasonable steps within its control to make the Service available subject to these terms and conditions but otherwise will have no obligation to monitor the availability or performance of, or any Outage relating to, the Service, or to ensure the availability of Your access to the Service, or the internet.
8. Limitation of Liability
I. To the maximum extent permitted by law, MYP, its affiliates, and any officer, director, employee, subcontractor, agent, Certified Partner, successor, or assign of MYP or its affiliates (a Covered Party) will not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from:-
a. any errors in or omissions from the Service, Data, Results or any of the Material available or not included therein;
b. the unavailability or interruption to the supply of the Service or any features thereof or the Data, Results or any of the Material;
c. Your use or misuse of the Service, Data, Results, or the Material (regardless of whether You received any assistance from a Covered Party in using or misusing the Service);
d. Your use of any equipment in connection with the Service;
e. the content of the Data, Results, Material or the Website;
f. any delay or failure in performance beyond the reasonable control of a Covered Party; or
g. any negligence of a Covered Party or its employees, contractors or agents in connection with the performance of MYP’s obligations under this Agreement
h. any claims made by the subscriber, the subscriber’s officers, employees, clients, customers, contractors, consultants or affiliates,
but this provision will not release a Covered Party from liability for its own fraud, negligence or misconduct.
II. MYP’s liability to You for breach of any condition or warranty implied under any law which cannot be lawfully modified or excluded by this Agreement shall, to the extent permitted by law, be limited at our option to supplying the Service, Results, Material or Website again or paying for their re-supply.
III. MYP’s liability to You for loss or damage of any kind (including loss or damage caused by negligence, fraud or misconduct) is reduced to the extent that You caused that loss or damage.
IV. Subject to clauses 7.2 (b)(c), MYP’s liability to You for breach of any condition or warranty implied under any law which cannot be lawfully modified or excluded by this Agreement shall, to the extent permitted by law, be limited at our option to supplying the Service, Results, Material or Website again or paying for their re-supply, the aggregate liability of the Covered Parties in connection with any other claim arising out of or relating to the Service, Data, Results, Material or the Website shall not exceed the amount of Your actual direct damages. Your right to monetary damages in that amount shall be in lieu of all other remedies which You may have against any Covered Party.
V. Subject to clauses 7.2 (b)(c) MYP’s liability to You for breach of any condition or warranty implied under any law which cannot be lawfully modified or excluded by this Agreement shall, to the extent permitted by law, be limited at our option to supplying the Service, Results, Material or Website again or paying for their re-supply, the Covered Parties shall not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including, without limitation, legal fees) in any way due to, resulting from, or arising in connection with the Service, Data, Results, Material, or the Website, or the failure of any Covered Party to perform its obligations, regardless of any negligence of any Covered Party.
9. Indemnity
I. You will at all times, promptly and completely indemnify MYP, its affiliates, and any officer, director, employee, subcontractor, agent, Certified Partner, successor against all and any claims, damages, liabilities, costs and expenses (plus any GST payable, and all legal costs and expenses) arising out of:-
a. any breach by or on behalf of You of any provision of this Agreement;
b. any act of negligence committed by or on behalf of You in performing or omitting to perform, its obligations under this Agreement;
c. any loss suffered by any third party in connection with any act or omission of or on behalf of You;
d. Your use of the Service and any loss suffered by You and/or Your staff, employees, contractors, consultants, volunteers or any other party as a consequence of Your management, maintenance or interpretation of award rules, award rates, remuneration, allowances, entitlements and/or conditions of employment
e. the use by or on behalf of You of the Subscription or any component of the Subscription including the Service, Data, Results, Material or the Website;
f. any interruptions in access to the Service caused by You.
II. That indemnity does not extend to claims, damages, liabilities, costs and expenses caused by MYP’s gross negligence or breach of this Agreement.
III. Each indemnity contained in this Agreement:-
a. is a continuing obligation despite the occurrence of any act and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full;
b. is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity; and
c. survives the termination of this Agreement.
10. Survival
The obligations under clauses You warrant:- Confidentiality (Confidentiality), Consequence of Termination (Consequence of Termination), MYP warrants that to the best of its knowledge:- MYP will provide the Service and Results, on an ‘as is’, ‘as available’ basis, and MYP undertakes no liability and gives no warranty:-, Limitation of Liability (Limitation of Liability), Indemnity (Indemnity), and Survival (Survival) and Dispute resolution (Dispute Resolutions) will survive Termination of this Agreement, as will any other provision which by its nature is intended to survive termination.
11. Dispute resolution
I. Nothing in this clause Dispute resolution prevents either party from exercising its rights under this Agreement, which may include commencement of court proceedings.
II. The parties will endeavour to resolve by negotiation any dispute that arises between them under this Agreement, and to conduct the dispute resolution process set out in this clause Dispute resolution as efficiently and cost effectively as possible.
III. Each party will bear its own costs in relation to its participation in any dispute resolution process.
IV. Notification
Where a party claims a dispute (including a breach or an alleged breach) has arisen under this Agreement, then:-
a. that party will give written notice to the other party of the nature and details of the dispute and nominating a representative to negotiate and settle the dispute (Notice);
b. the other party will, within ten (10) days of receiving the Notice, reply in writing nominating its representative to negotiate and settle the dispute (Reply); and
c. the representatives of each party will use their best endeavours to negotiate and settle the dispute, which settlement will be recorded in writing and signed by both. The parties acknowledge that it is in their respective interests to resolve disputes at this level.
V. Mediation
Should the representatives fail to reach a resolution in accordance with clause 7.5 (d) Notification within ten (10) days of the issue of the Reply, the parties may proceed to mediation. The mediator will be agreed between the parties or, failing agreement, will be an accredited mediator appointed by the Chairman of the Queensland Chapter of the Institute of Arbitrators and Mediators Australia. The parties agree to abide by the ADR Rules, in seeking to resolve the dispute in accordance with this clause Mediation.
VI. Arbitration
If the dispute cannot be settled within thirty (30) days (or such other period as the parties agree) after the mediator has been appointed or if the parties do not agree to mediation, within ten (10) days of the issue of the Reply, the dispute may be referred, at the instance of either party, to the Chairman of the Queensland Chapter of the Institute of Arbitrators and Mediators Australia for the appointment of a graded arbitrator who will arbitrate the matter in accordance with the provisions of the Commercial Arbitration Act (1990) Qld. Unless the parties agree otherwise, the place of arbitration will be Brisbane, Queensland.
VII. Continued Performance
Notwithstanding the existence of a dispute, each party will continue to perform its obligations under this Agreement, wherever practicable.
12. Force Majeure
I. Subject to clause 7.6 (b) either party may, if there has been no notice of the cessation of the Force Majeure for more than one hundred and eighty (180) days from the first occurrence of failure or delay in performance, and if the effect of the Force Majeure has not been overcome by the signing of an addendum pursuant to clause 7.6 (d) either party may then propose reasonable changes to this Agreement by notice in writing to the other party and the parties will negotiate the changes in good faith and will complete and sign an addendum which will become part of this Agreement; and: below, and with the exception of the payment obligations of You, neither party to this Agreement will be in breach of this Agreement if there is any total or partial failure of performance by it of its duties or obligations under this Agreement, or any delays in performance, occasioned by any cause or circumstance beyond that party’s control, including without limitation acts of God, of fire, of Government or State, of war, of civil commotion, of riot, of insurrection, of embargo, of strike or lockout, any prevention from or hindrance in obtaining any raw materials, interference by civil or military authorities, compliance with the laws of Australia or with the orders or policies of any governmental authority, delays in transit or delivery in the part of transportation companies, electrical or equipment suppliers or communication suppliers or facilities or of pandemic (Force Majeure).
II. Upon cessation of the cause of any Force Majeure, this Agreement will again become fully operative.
III. In the event of the occurrence of Force Majeure:-
a. the party claiming that Force Majeure has occurred will, without unnecessary delay, notify the other party in writing, advising of the cause or event giving rise to the Force Majeure; and
b. either party may then propose reasonable changes to this Agreement by notice in writing to the other party and the parties will negotiate the changes in good faith and will complete and sign an addendum which will become part of this Agreement; and
c. the party claiming that Force Majeure has occurred will notify the other party in writing, advising of the cessation of the Force Majeure, immediately upon its
IV. Either party may, if there has been no notice of the cessation of the Force Majeure for more than one hundred and eighty (180) days from the first occurrence of failure or delay in performance, and if the effect of the Force Majeure has not been overcome by the signing of an addendum pursuant to clause 6 (a) either party may then propose reasonable changes to this Agreement by notice in writing to the other party and the parties will negotiate the changes in good faith and will complete and sign an addendum which will become part of this Agreement; and:
a. issue a notice pursuant to clause Notice; or
b. terminate this Agreement immediately on giving notice in writing to the other Party.
V. This clause Force majeure (Force Majeure) does not apply to:-
a. clause Confidentiality (Confidentiality), or clause 7.3 Indemnity (Indemnity); or
b. clause 7.1 (d) MYP will provide the Service and Results, on an ‘as is’, ‘as available’ basis, and clause 7.2 (a) MYP undertakes no liability and gives no warranty:- and clauses 7.2 (b)(c)(d)(e) Limitation of Liability; or
c. clause 1 (a) be solely responsible for selecting, supplying, configuring and maintaining, at Your own expense, all computers, hardware, software, modems and similar which are necessary to access the Service, including any connection to the internet, and clauses 2.1 (b)(e)(f)(g)(h)(i) all associated telephone lines and telecommunications services; or
d. clause 7 (c)(ix) Administrative provisions that You will pay when due, and indemnify MYP against all liability for, all taxes, any tax on goods, services or goods and services, including any value added tax, broad based consumption tax or other similar tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST), charges, licence fees, stamp duty or assessments (including any penalties for late payment) imposed by any governmental authority and payable by MYP or You in relation to any goods or services provided under this Agreement, excluding income tax payable by MYP on its net income.
Dispute resolution; or
e. any obligation of either party to pay any money to the other; PROVIDED that if, due to Force Majeure, the Service, Benchmark Data, Benchmark Results, or the Material or the Website cannot be accessed by You, then the Subscription Fee will be reduced, for the duration of the Force Majeure.
13. Definitions and interpretation
I. In this Agreement unless the context otherwise requires:
a. reference to a person includes any other entity recognised by law and vice versa;
b. the singular includes the plural and vice versa;
c. one gender includes every gender;
d. reference to party includes their executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
e. an agreement, representation or warranty on the part of two or more persons binds each and all of them;
f. an agreement, representation or warranty in favour of two or more persons if for the benefit of each and all of them;
g. clause headings are for reference purposes only;
h. reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of it.
II. Definitions
In this Agreement, unless the context otherwise requires, the following terms have the corresponding meanings:
- Account means the Subscription account for Your use, and associated account information, log-in information, user ID, passwords and identity;
- ADR Rules means the mediation rules of the Institute of Arbitrators and Mediators Australia;
- Agreement means each and every one of the terms and conditions of this Subscription Agreement including any document expressed to be supplementary to it;
- Application means that application for a Subscription made by You by completing the form on the Website, and submitting it to MYP for approval, and ‘Apply’, ‘Applying’ and ‘Applied’ will have a corresponding meaning;
- Attack means attacks on computer systems or programs including both high level computer programs such as viruses, worms, trojans or other malicious computer programs or lower level denial of service attacks;
- Business System/s means any business or organisational activity, action, process, task, information, method, program, concept, technique and/or other proprietary knowledge that accesses, uses, incorporates, engages, integrates with and/or is developed with or uses MYP’s proprietary eSystem framework, program or module;
- Certified Partner means any person, corporation or commercial entity that enters into a Certified Partner agreement with MYP and complies with all terms of the agreement;
- Client or Customer means any person, corporation or commercial entity whose data or personal information is entered into MYP at the request, offer or entreaty of a subscriber, whether or not the subscriber has a contract or agreement to enter the data with the person, corporation or commercial entity;
- Confidential Information means all information supplied by MYP to You concerning the Subscription provided herewith and any components thereof, the IPR, the business of MYP, information relating to sales, marketing or technical operations of MYP, trade secrets, know-how, concepts, techniques, formulae, advice and other proprietary knowledge, whether in writing or otherwise, but excluding all information in the public domain expect where that information has become available by virtue of a breach of clause Confidentiality of this Agreement;
- Data means that data, information, figures and details relating to the subscriber’s business activities and/or Business System/s or the activities of their clients and/or customers either individually or in a particular Industry Category, and where the subscriber is a member of a Group, relating to the subscriber’s business activities within the Group, including, but not limited to, data relating to the following:
a. financial information such as revenues, expenses, assets, liabilities, profits and losses;
b. geographical information, such as business premises location, market segment dispersion;
c. customer and client information, such as type of business, industry or sector, size, location, services and products which they acquire;
d. marketing information, such as marketing methods, referrals, costs;
e. supplier information , such as type of business, industry or sector, size, location, services and products they supply; and
f. anything else required by the Website from time to time, which information and data is reasonably accurate at the time, and not misleading;
- eSystem means MYP’s proprietary framework that enables the design, development, creation or construction of a Business System or Business Systems;
- Group means that class or collection of clients and customers of a subscriber;
- Industry Category means that industry or business sector which most appropriately describes Your business activities, which You nominate in Your Application from a list of standardised industry groups provided by MYP, which in the first instance will include:
a. manufacturing;
b. retail;
c. export / import;
d. services; and
e. any other industry or business sector as set out on the Website from time to time;
- IPR means all intellectual property rights including those rights in patents, patent applications, trade marks, copyright, designs (whether registered or not), circuit layout rights, business reputation, confidential information, know-how and trade secrets subsisting in the Service, the Website, the Material, the Confidential Information and the Improvements, and anywhere in the world;
- Improvements means those upgrades, updates, amendments or modifications to, the Service, the Website, or the IPR, whether developed by MYP or You;
- Material means that material and information provided to You pursuant to this Agreement or to which You otherwise gain access, including all information, text, graphics, diagrams, artworks, flowcharts, correspondence, emails, software, advertisements, marketing or operational information, names, and logos and other information with respect to the Service, in any form;
- MYP means myYardstick Holdings Pty Ltd ACN 126 644 862, MYP Corporation Pty Ltd ABN 37 131 264 465 and includes any subsidiaries, parent entities, related bodies corporate, assignees, transferees, directors, officers, employees, agents or subcontractors jointly and severally;
- Outages means those occasions when MYP or other third parties perform remedial work in the form of maintenance, upgrades or repairs to the Service or the Website, such that all or part of the Service or the Website is not available for Your use or access;
- Payment Confirmation means that confirmation, received by MYP, that payment of the Subscription Fee to MYP, has been received;
- Payment Method means that method by which MYP will accept payment of the Subscription Fee from You;
- Payment Terms means the terms of payment of the Subscription Fee by a Benchmark Subscriber to MYP, which payments are due and to be made as specified by MYP;
- Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual or commercial entity represented by the individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
- Privacy Policy means that privacy policy printed by MYP on the Website, which sets out MYP’s use of, storage of, collection of and protection of Personal Information;
- Publish means the publication, communication or dissemination of the Results, or the Material by MYP to You, and where You are a member of a Group, to the Group Administrator, whether by email, or uploading onto Your Homepage, or by other means, at the time and from time to time, and ‘Publishing’, ‘Published’ and ‘Publication’ will have a corresponding meaning;
- Results means that information, data, analysis, reports and results Published by MYP to You, and where You are a member of a Group, to the Group Administrator, which includes, but is not limited to, a comparison of Your Data with that of other subscribers who have submitted data for the defined period and historical Data submitted to MYP and aggregated and stored in MYP’s databases, for the Industry Category, and Your Group or any other segmentation, if any, nominated by You in Your Application;
- Service means Business System service and the business information service, developed and owned by MYP, for which You are granted a Subscription in this Agreement, and which depending upon Your subscriber status, may, for a Subscriber, provide Business System services and business information services, including but not limited to, services for the analysis and or comparison of practices, procedures and performance, both financial and otherwise, of subscribers with external reference to other subscriber in the same Industry Category, and where You are a member of a Group, with reference to other subscribers in that Group, or with generic data from other subscribers, which data is aggregated by MYP from the Data provided by each and every subscriber as a Subscriber, for retention and subsequent use in providing such services, including the Results which are Published to You including via email and Website updates; and any related services on a world wide basis, as upgraded or modified from time to time, along with the IPR and Improvements therein, and the Confidential Information and Material.
- Subscription means a subscription provided by MYP to You, in accordance with this Agreement, using the Account, throughout the Term, and which allows You a non-exclusive, non-transferable, revocable licence to access and use the Service for that subscription;
- Subscriber means that Subscription which You Apply for, and which:
a. Entitles You to access the relevant online tools, modules, Data, Business Systems, Results and Reports Published by MYP; and
b. requires You to comply with all Subscription agreement terms and conditions and Website terms and conditions;
- Subscription Fee means that fee to be paid by a Subscriber to MYP, throughout the Term, and which fee is set out in contracts with a Subscriber or on the Website as varied from time to time in accordance with the terms of this Agreement;
- Term means that period of time from the date MYP accepts Your Application until You fail to make payment of the Subscription Fee or earlier termination occurs in accordance with clause Termination of this Agreement; and Termination will have a corresponding meaning;
- Unauthorised Use means acts of misuse of any component of the Service by You, including but not limited to use:-
a. other than strictly in accordance with this Agreement;
b. which causes degradation to the Service, or interference with use of the Service by others, or circumstances which may place MYP in potential or actual breach of any agreement with third parties;
c. to allow (whether knowingly or not) any computer virus, trojan horse or other malicious, harmful or disabling data, code or program to be transmitted or disseminated into the Service;
d. to interfere with, disrupt or attempt to gain unauthorised access to, any computer system, network or account for which it does not have authorisation to access;
e. create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
f. access the data transmitted via the Service to develop or publish any product in competition with those provided by MYP;
g. copy, disclose, publish or otherwise make available to any third party, any compilation of data obtained through the use of the Service;
- Website means that set of internet web pages hosted by MYP, available for access under the terms and conditions of use as printed on the Website, in addition to other web pages designed for access by You and other subscribers via the Account, part of which comprises Your Homepage;
- You means the subscriber to the service, the officers, employees, clients, customers of the subscriber, contractors, consultants and any other persons, corporations or commercial entities affiliated with the subscriber for the purpose of using the service.
- Your Personal Information means all information provided to MYP by the subscriber including and not limited to the business and other information of the subscriber, the subscriber’s officers, employees, customers, clients, contractors, consultants and any other persons, corporations or commercial entities affiliated with the subscriber.
- Your Homepage means that web page on the Website, unique to You and hosted by MYP, designed for access by You only, via the Account, and through which You may access the Service.
14. Administrative provisions
I. Notice
a. Notices or other communications given under this Agreement including, but not limited to, requests, demands, consents or approvals, will be in writing and delivered either by mail, email or by facsimile, and addressed to:
i. MYP at (email address)
ii. You at the address set out in the
b. Notice will be deemed given, in the case of:
i. prepaid registered mail, three (3) business days from and including the date of posting;
ii. email receipt by the sender of an acknowledgment or transmission report generated by the machine from which the email was sent;
iii. facsimile, on receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent;
iv. if given within normal business hours, or otherwise notice will be deemed given at the commencement of the first business day thereafter.
II. Entire agreement
This Agreement, when read in conjunction with the ADR Rules, sets out the entire understanding between the parties and merges all prior discussions and agreements between them. The parties will not be bound by any conditions, definitions, warranties or representations in respect of the subject matter of this Agreement other than those contained in this Agreement or the ADR Rules, and that to the extent permitted by law, all express or implied warranties, representations, statements, terms and conditions relating to this Agreement, which could otherwise be relied upon by either party are excluded, unless expressly stated in this Agreement.
i. Industry change
a. In the event of any change in legislation or industry practice, or the content generally available within the Service, that directly or indirectly affects:
a. the operation of this Agreement or the Service which is material to MYP performing its obligations, including its obligations to You; or
b. the benefits of this Agreement accruing to MYP;
c. MYP reserves right to change these Terms & Conditions:
a. with or without further notice to You;
b. without giving You any explanation or justification for such change.
d. It is Your responsibility to ensure You carefully read this Agreement each time You access the Service, or the Any revision to this Agreement will take effect immediately upon being posted on the Website.
e. The parties acknowledge and agree that only You and MYP have or are intended to have a right or remedy under this Agreement or obtain a benefit under it.
ii. Changes in Internet-Related Laws
The parties to this Agreement recognise that issues of legal liability and responsibility for internet-related transactions are changing rapidly. The parties intend to retain their relative responsibilities and rights regardless of changes in underlying statutory or case law. The parties agree to negotiate in good faith any amendments to the Agreement necessary to maintain the relationship between them.
iii. Forum and jurisdiction
This Agreement is deemed to have been made in Queensland, Australia and the construction and performance of this Agreement will be governed in all respects by the law of that place and any dispute in relation to any provision of this Agreement will be heard in the appropriate jurisdiction in that place.
iv. Waiver
a. Any failure or delay by a party in the exercise of any of their rights under this Agreement will not be deemed to be a waiver of such rights, except where the party expressly by notice in writing waives compliance with such provision.
b. The waiver by a party of any default by the other party of any of the obligations of this Agreement will not be in any way construed to operate as a licence to the other party to repeat or continue any such alleged default or as a waiver of any subsequent default, whether of like nature or not.
v. Time
Time will in all respects be of the essence, such that all time periods nominated in this Agreement will apply strictly.
vi. Subscriber may not withhold payments
You will not on any grounds of alleged non-performance by MYP of any of its obligations or for any other reason, withhold payment of any Subscription Fee due whatsoever.
vii. Taxes and stamp duty
The parties agree that:
a. You will pay when due, and indemnify MYP against all liability for, all taxes, any tax on goods, services or goods and services, including any value added tax, broad based consumption tax or other similar tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST), charges, licence fees, stamp duty or assessments (including any penalties for late payment) imposed by any governmental authority and payable by MYP or You in relation to any goods or services provided under this Agreement, excluding income tax payable by MYP on its net income.
b. MYP will pay when due, and indemnify You against all liability for, all taxes, GST or assessments (including any penalties for late payment) imposed by any governmental authority and payable by MYP or You in relation to any payments to be made by MYP to You under this Agreement.
c. Unless expressly stated otherwise, any consideration for any supply made pursuant to this Agreement does not include GST. You agree to pay GST, if You are an Australian resident, on all amounts owed to MYP, in addition to any consideration set out in this Agreement.
viii. Severability
If any term of this Agreement is to any extent, held by any Court of competent jurisdiction to be invalid or unenforceable, that provision will be read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability, and the remaining terms and provisions of this Agreement will not be affected and will remain in full force and effect.
ix. Further assurances
Each party will do all such acts, matters and things and execute such further deeds and other documents as may be necessary or desirable for the purpose of giving effect to this Agreement.
