website terms + conditions

  1. Website Terms and Conditions of Use
    These are the standard Terms and Conditions of Use which apply to www.mypcorp.com and any websites owned and operated by myYardstick Holdings Pty Ltd (MYP, we, us and our).These Terms and Conditions of Use bind you the User, including without limitation General Users or Subscribers (the User), with respect to:

    1. access to and use of this Website; and
    2. any information, product or service (including any General User or Subscriber Services) accessed or supplied from, on, or via the Website.

In using this Website, or any product or service (including General User or Subscriber Products or Services) accessed or supplied from, on, via or by us, or the Website, you agree to be bound by these Terms and Conditions of Use.

If you do not accept these Terms and Conditions of Use, you must refrain from using the Website, or any product or service (including General User or Subscriber Services) accessed or supplied from, on, via or by us, or the Website. These Terms and Conditions of Use apply in addition to and do not derogate from any other terms or conditions that expressly apply to a specific product or service accessed, supplied or provided by, or via us, or the Website. If there is any inconsistency between these Terms and Conditions of Use and the terms or conditions applying to a specific product or service, the latter prevail to the extent of the inconsistency.

 

  1. Amendments to Terms and Conditions
    1. We reserve the right to change or amend these Terms and Conditions of Use from time to Amendments will be effective immediately upon notification on the Website.
    2. You are responsible for informing yourself of any changes by regularly reviewing these Your continued use of the Website following such notification will represent an agreement by you to be bound by the Terms and Conditions of Use as amended.

 

  1. User Obligations
    1. The User acknowledges and agrees as follows:
      1. to ensure that all commercial messages sent out via MYP comply with all requirements of Spam legislation (such as the Spam Act 2003 in Australia) in the relevant jurisdictions. This includes, where required, ensuring messages:
        1. are sent only with expressed consent or inferred consent of the recipient;
        2. always contain the correct legal name of the organisation or individual, and a Business Number (if applicable) and how they can be contacted;
        3. always contain a functional Unsubscribe facility
      2. not to make Unauthorised Use of the Website;
      3. not to use or otherwise engage in any conduct in any way related to the Website:
        1. for any unlawful, illegal, malicious or improper purpose or to conduct or promote anything that is illegal or otherwise breaches any law;
        2. which in any way interferes with its availability for other users or otherwise interferes with its proper operation
      4. to ensure they have sufficient protection in place to protect the Website against Attack and to prevent circulation of Attacks through the Website, including firewalls, policies regarding email attachments, and up to date virus scanning software. For the removal of doubt, we do not accept responsibility for any interference or damage to the User’s own computer system which arises in connection with use of this Website or any Linked Website;
      5. that satisfactory access to the Website depends upon the suitability of the User’s computer, hardware, software, modem and similar, including connection to the internet and all associated telephone lines and telecommunications services, which are the User’s responsibility;
      6. that the User is provided with access to this Website only for personal use, unless we agree otherwise in The User is authorised to print a copy of any information contained on this Website for personal use, unless such printing is expressly prohibited;
      7. that Outages may occur in relation to the Website without notice to the User and that such Outages will not entitle the User to any compensation, regardless of the cause or length of the Outage;
      8. any information provided by the User to us or posted or sent to or via the Website will be, to the best of the User’s knowledge, true, accurate, complete and up to date, and will not be misleading; and
      9. to be bound by these Terms and Conditions of Use including these Terms and Conditions of Use as amended or changed from time to time.

 

  1. Termination of Access
    1. We reserve the right to, at any time:
      1. refuse the supply of or access to the Website or any service (including any General User or Subscriber Services) to any person; or
      2. cancel the Subscription of any User,
        if we consider in our sole opinion that a User has or may be misusing any service (including interfering with other users or administration of our services in any way), the Website, or has otherwise breached or may be in breach of these Terms and Conditions of Use or has otherwise acted in a manner detrimental to our interests.
    2. We may modify, remove, reconfigure, discontinue, replace, substitute, upgrade or enhance any function, component of, or feature of, or data provided through the Website, including the content, hours of availability, pricing, equipment required for access, or these Terms and Conditions of Use, or discontinue the services including any Subscriber Service or the User’s account or Subscription, with or without notice, without liability to the User or any other person (except to the extent otherwise provided for in the terms and conditions of any subscription service).
    3. Any decision to modify, discontinue or refuse the supply of or access to its services is at the sole discretion of Subject to the terms and conditions under which any subscription service is provided, we accept no liability for any consequences of such modification, discontinuance or refusal of any such service.
    4. Our disclaimers will nevertheless survive any such termination.

 

  1. General Users and Subscribers
    1. There are two (2) User levels on the Website as follows:
      1. Level 1: General User – Users who have general access to the Website free of charge and without Subscription, and who have provided all or part of their Details, and may receive free newsletters or other content or services that may be available from time to time and/or are clients or customers of subscribers or prospective clients or customers who may have access to services and results of the website where approved by the subscriber and MYP;
      2. Level 2: Subscribers – Users who pay for access to the Subscriber Services.
    2. Subscribers under level 2 above acknowledge and agree
      1. that they are solely responsible for the protection and confidentiality of any password or User ID that may be issued to or subscribed for by them from time to time (User Password);
      2. that they will not reveal (or cause to be revealed through any act or omission) their User Password to any other person;
      3. to immediately notify us on becoming aware that their User Password is lost or becomes known to any other person;
      4. that they are solely responsible for all access to and use of the Website, including any Linked Websites via their User Password, whether such access or use is by the Subscriber or any other person;
      5. that Subscriber Services are for one User only and the User will not let any other person use their User Password or any Subscriber Services PROVIDED that if the Subscriber is a member of a Group, the Subscriber acknowledges and agrees that the Group Administrator will have access to certain of the Subscriber Services which relate to that Subscriber; and
      6. any information they provide to the Website or us at any time may be used by us for the purposes of our business with the right to sublicense that right to others.
    3. General User Services
      1. General Users may provide their Details in the manner described on the Website. Registering to receive free newsletters or other content or services that may be available from time to time is free but non-transferable. We reserve the right to terminate access to the General User Services at any time if the User breaches these Terms and Conditions of User.
      2. A General User, who has provided us with all or part of their Details:
        1. will ensure that their Details are up to date, accurate and not misleading;
        2. acknowledges that, in respect of their Details, we may retain, and will protect, the information provided by them in accordance with our Privacy Policy; PROVIDED that we may use this information for the purposes of:
          1. providing customer support and other similar activities related to the Website; and
          2. keeping them informed of products, services, offers and upcoming events and to improve our services.
        3. You can opt-out of marketing communications at any time. Please see our Privacy Policy for further information on how you can do this.
    4. Subscriber Services
      1. The Website offers various subscriber services that consist or access to or the supply or provision of services, content or information not available to General Users (Subscriber Services).
      2. To become a Subscriber, the User must:
        1. complete their Details in the manner described on the Website; and
        2. agree to the terms of the Subscription Agreement, and acknowledge that any particular terms and conditions attaching to the use of any Subscriber Services are in addition to these Terms and Conditions of Use.

 

  1. Linked Websites
    1. This Website may contain links to Linked Those links are provided for convenience only and may not remain current or be maintained. The User acknowledges and agrees that:
      1. we are not responsible for the content or privacy practices associated with Linked Websites;
      2. our links with Linked Websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those Linked Websites, or of any information, graphics, materials, products or services referred to or contained on those Linked Websites, unless and to the extent stipulated to the contrary; and
      3. the User will make their own enquiries with the Linked Websites directly, before relying on the content or information associated with Linked Websites, or before entering into a transaction relating to any Linked Websites.
    2. Advertisements – Responsibility for the content of advertisements appearing on the Website (including hyperlinks to advertisers’ own websites) rests solely with the advertisers. The placement of such advertisements does not constitute a recommendation or endorsement by us of the advertisers’ products and each advertiser is solely responsible for any representations made in connection with its advertisement.

 

  1. Disclaimers
    1. We do not accept responsibility for any loss or damage, however caused (including through negligence other than our gross negligence or wilful misconduct), which the User may directly or indirectly suffer in connection with their use of this Website, any product or service (including any General User or Subscriber Services) accessed or supplied from, on, via or by us, or the Website, or any Linked Website, nor do we accept any responsibility for any such loss arising out of the User’s use of, or reliance on, information contained on or accessed through the Website.
    2. The User acknowledges that:
      1. we are a distributor, not a publisher, originator or creator of much of the content on the Website, and our editorial control is limited to the selection of materials made available to us;
      2. where we do provide general or generic recommendations, these recommendation are not specific to, and have not be customised or tailored to, the User’s circumstances, and we give no warranty as to the accuracy, reliability, completeness, timeliness, usefulness or otherwise, of those We do not accept liability for loss or damage caused by the User’s reliance upon any such recommendation, and it remains the User’s responsibility to evaluate the accuracy, completeness and usefulness of any such information. The User will seek independent advice and assistance before relying upon such recommendations; and
      3. any opinions or advice by third parties remain the responsibility of those third parties.
    3. Except to the extent required by law and subject to clause V below, we give no warranty:
      1. in relation to the distribution, or the nature and extent of distribution, of the content to our Subscribers;
      2. as to the condition, quality or performance of the Website or any component of the Website;
      3. as to the accuracy, reliability, completeness, timeliness, usefulness or otherwise, of the content of the Website, including text or graphics;
      4. as to the continued availability to us of information to enable us to keep the content of the Website up to date;
      5. in relation to defects, error or inadequacies of any kind in the content of the Website, or any component of the Website, regarding its fitness for any particular purpose, or interruptions in access to, operation of or use of the Website;
      6. that the Website will run properly on the computers, hardware, software, modems and similar which are necessary to access the Website, including any connection to the internet, and all associated telephone lines and telecommunications services, which the User has selected or acquired, or within all network and operating system environments used by the User;
      7. that errors in the Website will be rectified; or
      8. as to the security of the Website, and will not be liable in the event that any Attack is distributed via the Website, or for any degradation in service, increased download or damage suffered by the User as a result of any Attack.
    4. Where the information made available through the Website or any product or service (including any General User or Subscriber Services) accessed or supplied from, on, via or by us, or the Website, contains opinions or judgements of third parties, we do not purport to endorse the contents of that opinion or advice nor the accuracy or reliability of that opinion or advice. We do not accept liability for loss or damage caused by the User’s reliance upon any information obtained through the Website or any product or service (including any General User or Subscriber Services) accessed or supplied from, on, via or by us or the Website, and it remains the User’s responsibility to evaluate the accuracy, completeness and usefulness of any such information.
    5. To the extent permitted by law, any condition or warranty which would otherwise be implied into these Terms and Conditions of Use is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following:
      1. if the breach relates to goods, the:
        1. replacement of the goods or the supply of equivalent goods;
        2. repair of such goods;
        3. payment of the cost of replacing the goods or of acquiring equivalent goods; or
        4. payment of the cost of having the goods repaired; and
      2. if the breach relates to services, the:
        1. supplying of the services again; or
        2. payment of the cost of having the services supplied again.
    6. Exception to disclaimers – The disclaimers set out in these Terms and Conditions of Use do not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.
    7. Indemnity – The User (including without limitation any General User or Subscriber) hereby releases and irrevocably indemnifies us, our servants and agents from and against any and all actions, claims, loss, damage, cost (including legal costs on a full indemnity basis), expense or liability to, by or of us or any other person arising from or in any way related to:
      1. any act or omission of the User in breach of these Terms and Conditions of Use;
      2. any use by the User, whether direct or indirect, of the Website or Linked Websites or any other website;
      3. any negligent or wilful misconduct, or other wrongful or unlawful conduct of any kind by or on the part of the User.

 

  1. Intellectual Property
    1. Unless expressly notified by us, all Intellectual Property comprised in the Website, the Material or any other information contained in or otherwise connected with the Website or any General User or Subscriber Services are the exclusive property of MYP.
    2. We reserve all of our rights with respect to all of our Intellectual Property.
    3. Except as otherwise provided by these Terms and Conditions of Use, and to the full extent permitted by law, the User will not:
      1. on-sell or resell any component of or information obtained from this Website or the Material;
      2. modify, copy, reproduce, adapt, decompile, disassemble, publish, communicate, broadcast, distribute, re-transmit, download, upload or repost, store, or attempt to modify, copy, reproduce, adapt, decompile, disassemble, publish, communicate, broadcast, distribute, re-transmit, download, upload or repost, store, or create derivative works or subject matter other than works, based upon any component of or information obtained from any of our Intellectual Property; or
      3. use, frame or utilize framing techniques to enclose the images or content of any text or layout or design of any page or form contained on a page in the Website.
    4. To the full extent permitted by law, any information posted on the Website or sent to us may be used by us for the purposes of our business with the right to sublicense that right. The User remains liable for any claim by any person for any loss, damages, cost or expense of any kind in any way related to that information.
    5. Trade marks – Except where otherwise specified, any word or device to which is attached the or symbol is a registered trade If a User uses any of our trade marks in reference to our activities, products or services, the User must include a statement attributing that trade mark to us. The User must not use any of our trade marks:
      1. in or as the whole or part of your own trade marks;
      2. in connection with activities, products or services which are not ours;
      3. in a manner which may be confusing, misleading or deceptive; or
      4. in a manner that disparages us or our information, products or services (including any General User or Subscriber Services) accessed or supplied from, on, via or by us, or the Website.
    6. We reserve the right to revoke, at any time, for any reason, any licence to use our trade marks.

 

  1. Privacy and Security
    1. Privacy policy – We undertake to comply with the terms of our Privacy Policy, which are available on the Website.
    2. Security of information – Unfortunately, no data transmission over the internet can be guaranteed as totally Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which the User transmits to us. Accordingly, any information which the User transmits to us is transmitted at their own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.

 

  1. General
    1. We accept no liability for any failure to comply with these Terms and Conditions of Use where such failure is due to circumstances beyond our reasonable control.
    2. Waiver – Any failure by us to exercise any right under these Terms and Conditions of Use does not operate as a waiver and the single or partial exercise of any right by us does not preclude any other or further exercise of that or any other right by us.
    3. Severability – Any provision of these Terms and Conditions of Use which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provision of these Terms and Conditions of Use, or the validity of that provision in any other jurisdiction.
    4. No assignment or sublicense – The User may not assign or sublicense any rights granted under these Terms and Conditions of Use.
    5. Governing law – The Website, excluding any Linked Websites, is controlled by us from Australia. These Terms and Conditions are governed by the laws in force in Queensland, Australia, and any dispute about the Website, its contents or your dealings with us must be determined by the laws in force in that jurisdiction.
    6. Site or content unlawful outside Australia – We do not warrant that the content of the Website complies with the laws of any country outside of If you access the Website from outside Australia, you do so at your own risk, and accept responsibility for ensuring or confirming compliance with all laws that apply to you as a result of that access or any consequent transaction of dealings with us.
    7. Your responsibility under laws affecting you – The User is responsible for ensuring that their use of the Website:
      1. is not illegal;
      2. does not infringe any third party’s rights;
      3. is not prohibited by, and that they at all times comply with, any laws that apply to the User or in the User’s location; and
      4. does not breach any standards, content requirements or codes promulgated by any relevant authority (including relevant internet industry codes of practice).
    8. Termination – For the avoidance of doubt, we may, with or without cause, terminate these Terms and Conditions of Use, or any licence or agreement arising under or pursuant to these Terms and Conditions of Use, at any time.

 

  1. Interpretation
    1. In these Terms and Conditions,
        • 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;
        • Details means a User’s details, account information and identity, including Personal Information, provided by a User to us by completing the form on the Website, and which details are required for Subscription;
        • General User means a User who has general access to the Website free of charge and without Subscription, but who may have provided some or all of their Details, and is therefore entitled to receive free newsletters and other content and services, available from time to time;
        • General User Services means those services provided by us to a General User, including receiving free newsletters and other content and services, available from time to time;
        • Group means that class or collection of related Subscribers who belong to or form a particular group, and who have subscribed as that particular group, and which group may or may not be administered by a subscriber acting as Group Administrator;
        • Group Administrator means that Subscriber who belongs to or forms part of a particular Group and which Subscriber has been selected to manage a particular Group including having access to and use of Services and Data relating to other subscribers, who are members of the same Group;
        • Intellectual Property means all intellectual, industrial and commercial property or rights of a proprietary nature, comprised in the Website, and any Material, including all copyright, patents, designs, trade marks, trade names, logos, trade secrets and know-how, confidential information, circuit layout rights, plant breeders rights and any other similar right or form of intellectual property;
        • Linked Websites means those websites owned and operated by third parties, and any products, services or content related to those websites, for which there are access to, or links to, on our Website;
        • Material means any material or information including all information, content, text, graphics, diagrams, artworks, flowcharts, correspondence, emails, software, advertisements, marketing and operational information, and any other information related to, contained in or otherwise connected with the Website or any General User or Subscriber Services;
        • Outages means those occasions when we, or other third parties perform remedial work in the form of maintenance, upgrades or repairs to the Website, such that all or part of the Website is not available for your use or access;
        • Personal Information means any information or an opinion (including information or any opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
        • Privacy Policy means that privacy policy published on the Website which sets out our policies on use, storage, collection and protection of Personal Information;
        • Subscriber means a User who has general access to the Website free of charge, and is entitled to access to and the provision of Subscriber Services under Subscription in accordance with a Subscription Agreement;
        • Subscriber Services means those information services developed and owned by us, for which a Subscriber is granted a Subscription, including access to or the provision of services, content and information not available to General Users;
        • Subscription means that subscription provided by us to a Subscriber, in accordance with the Subscription Agreement, which allows the Subscriber access to and use of the Subscriber Services;
        • Subscription Agreement means those terms and conditions attaching to Subscriber Services, which a Subscriber agrees to upon Subscription, and which agreement is in addition to these Terms and Conditions of Use;
        • Terms and Conditions of Use means these terms and conditions with respect to access to and use of this Website, and any information, product or service, including any General User or Subscriber Services, accessed or supplied from, on, or via the Website;
        • Unauthorised Use means acts of misuse of any component of the Website by you including but not limited to use:
          1. other than strictly in accordance with these Terms and Conditions;
          2. which causes degradation to the Website or interference with use of the Website by others, or circumstances which may place us in potential or actual breach of any agreement with third parties;
          3. 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 Website;
          4. to interfere with, disrupt or attempt to gain unauthorised access to, any computer system, network or account for which you do not have authorisation to access;
          5. to create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; or
          6. to access the data transmitted via the Website to develop or publish any product in competition with those provided by us; User means the users who access and use the Website, and any information, product or service accessed or supplied from, on or via the Website including a General User and Subscriber; User Password means the password, log-in information and User ID associated with and allocated to a User who completes Subscription to enable them to access the Subscriber Services; Website means that set of internet web pages hosted by us, and available for access under these Terms and Conditions, and which web pages publish certain content.
    2. In these Terms and Conditions of Use, unless the context otherwise requires:
      1. headings are for reference purposes only;
      2. the singular includes the plural and vice versa;
      3. reference to a person includes a company or any other entity recognised by law and vice versa;
      4. where a word or phrase is defined its other grammatical forms have a corresponding meaning;
      5. the use of the word includes and including is not to be taken as limiting the meaning of the words preceding it; and
      6. an agreement, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally.

 

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
    1. During the Term, MYP will:-
      1. 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:-
        1. 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;
        2. for the purpose of providing access to a Business System or Business Systems used by You;
        3. subject to and conditional upon You:-
          1. accepting, without alteration, this Agreement; and
          2. fulfilling Your obligations set out in clause Obligations of Subscriber of this Agreement;
      2. in respect of Your Personal Information:
        1. 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);
        2. use Personal Information collected about You for the purposes of:-
          1. access to and use of the Service by You;
          2. where You are a member of a Group, providing access to and use of the Service by the Group;
          3. providing customer support and other similar activities related to the Service; and
          4. keeping You informed of products, services, offers and upcoming events and to improve our services;
        3. not use Your Personal Information for on-selling to list brokers;
        4. be entitled, without notice or liability to You, to inhibit access to the Service if any government authority so requires or requests;
        5. 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;
        6. 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
        7. 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.

 

  1. Obligations of Subscriber
    1. During the Term, You will, for the Subscription You have Applied for:
      1. 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;
      2. with respect to the Service:-
        1. 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;
        2. 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;
        3. 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;
        4. 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;
        5. 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:
          1. are sent only with ‘expressed consent’ or ‘inferred consent’;
          2. always contain the correct legal name of the organisation or individual, and a Business Number (if applicable) and how they can be contacted;
          3. always contain a functional ‘Unsubscribe’ facility.
      3. if You have Applied as a Subscriber:
        1. with respect to Data:
          1. submit the Data for the period at any time throughout the Term;
          2. ensure that all Data that You submit is, to the best of your knowledge, accurate, complete, reliable and not misleading;
          3. 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);
          4. 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;
          5. submit Data in the format, using the forms on the Website, and as directed by MYP from time to time;
          6. 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;
          7. acknowledge that if You fail to submit Data as required, MYP may limit Your access to the Results in a manner we decide.
        2. with respect to Results:
          1. 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;
          2. only have access to and be Published the Results for the Industry Category to which You have Applied;
        3. with respect to Business Systems:
          1. 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;
      4. with respect to maintenance, acknowledge that:-
        1. 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
        2. 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;
      5. with respect to the IPR:-
        1. acknowledge that nothing in this Agreement, gives You any right, title or interest in the IPR other than as specifically set out herein;
        2. notify MYP in writing of any infringement of the IPR coming to the attention of You, directly or indirectly;
        3. use or display Our logos, brands or other intellectual property only with our written approval and in a format supplied and approved by Us;
        4. 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;
        5. 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:
          1. termination of the Subscriber’s subscription; or
          2. lapse of the Subscriber’s subscription.
          3. 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;
        6. 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).
      6. with respect to the Material:-
        1. acknowledge that nothing in this Agreement, gives You any right, title or interest in the Material other than as specifically set out herein;
        2. only use the Material for the Services specified;
        3. 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);
      7. 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;
      8. 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:
        1. causes the total Outages within a period of one month to exceed 48 hours; and
        2. is caused by our negligence or breach of contract;
      9. 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;
      10. in respect of Your Personal Information:-
        1. acknowledge that MYP gives no warranty as to the guaranteed protection of Your Personal Information;
        2. provide to MYP true and accurate information;
      11. use the Service in a responsible manner, taking into account the effects its use may have on other users;
      12. 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:-
        1. for any unlawful, illegal, malicious or improper purpose or to conduct or promote anything that is illegal;
        2. in any way which interferes with its availability for other subscribers or otherwise interferes in the proper operation of the Service;
        3. to disclose or misuse private or confidential information to another;
        4. to enable a minor to access material inappropriate for a minor;
        5. to harass, threaten or menace any person or cause damage or injury to any person or property;
        6. 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;
        7. to impersonate another person or use another’s name, user name, password or account without permission;
        8. to expose MYP to the risk of any legal or administrative action including prosecution under any law;
        9. to interfere with, disrupt or affect the availability of the Service, any other network or computer system or the use of any of them;
        10. to result in an Attack being sent through the Service; or
        11. to attempt to do any of the foregoing;
      13. 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 ;
      14. in relation to third party content accessed via the Website:-
        1. 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);
        2. 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;
        3. 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;
      15. not assign this Agreement or any right or obligation under it.
    2. You warrant:-
      1. You have relied on Your own judgment and experience in entering into this Agreement;
      2. 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;
      3. 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;
      4. You are not a minor;
      5. 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;
      6. 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.

 

  1. Payments
    1. Subscription Fee
      During the Term, You will pay the Subscription Fee to MYP by the Payment Method on the Payment Terms.
    2. Variation to Subscription Fee
      MYP reserves the right to adjust the Subscription Fee:-

      1. to accommodate any increase in the costs associated with the Service, where those costs form part of the Subscription Fee herein;
      2. on an annual basis as at 1 July each year;
      3. 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.
      4. No Refund
        The Subscription Fee is not refundable under any circumstances.

 

  1. Confidentiality
    1. During the Term, and after the expiry or Termination of this Agreement, You will:-
      1. 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;
      2. keep the Confidential Information secure from unauthorised access, damage or destruction;
      3. not reproduce or copy the Confidential Information, in whole or in part Agreement;
      4. 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.

 

  1. Training
    Where a Subscriber agrees to Us conducting a training session/s for Them, the following will apply:

    1. 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.
    2. Where multiple tailored training sessions are scheduled, the 50% balance of the training fee will be invoiced on completion of the first training session.
    3. Any costs incurred to conduct training at the Subscriber’s specified venue (e.g. travel, accommodation, administration etc) will be payable by the Subscriber.
    4. 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.
    5. 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.
    6. Changes to the training date after confirmation will result in any costs incurred being payable by the Subscriber (e.g. travel, accommodation, administration etc).
    7. An Invoice for the remaining 50% of the agreed training fee will be emailed on completion of training and is payable within 7 days.
    8. 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.

 

  1. Termination
    1. 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.
    2. 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:

      1. Log into MYP;
      2. Click the menu button on the top right (three lines);
      3. Select ‘Subscription + training management’;
      4. Scroll down and click the ‘suspend’ button (far right) beside the relevant module/s;
      5. 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.
    3. Suspension of Access
      MYP is entitled to suspend access to the Subscription or any part of it, without any liability to MYP, immediately upon:-

      1. 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;
      2. becoming aware of any Unauthorised Use by You of any component of the Service;
      3. 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.
    4. 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:

      1. 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
      2. 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.
    5. Termination by MYP
      MYP may Terminate this Agreement and the Subscription granted in it, upon:-

      1. thirty (30) days after a notice issued pursuant to clause 3, which applies to You, if the notice is not complied with; and
      2. 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.
    6. 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:-

      1. cease to use the Subscription or any component of it;
      2. if applicable, not be entitled to any further payment of the Introducer Fee;
      3. 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
      4. not be entitled to any reimbursement or refund for any losses incurred, other than those set out herein.
    7. 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.

 

  1. Warranties
    1. MYP warrants that to the best of its knowledge:-
      1. the Subscription granted in this Agreement does not infringe the intellectual property rights of any third party; and
      2. it is entitled to grant the Subscription to You;
      3. 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:-
        1. 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:-
          1. sole authority to defend or settle the claim, as it, in its sole discretion considers appropriate;
          2. 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;
        2. 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.
      4. 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):-
        1. as to the condition, quality or performance of the Service or any component of it, including the Data, Results or the Material;
        2. 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;
        3. 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;
        4. 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;
        5. 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);
        6. 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;
        7. that the Service will run properly:-
          1. 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
          2. within all network and operating system environments used by You; or
        8. that errors in the Service will be rectified;
        9. 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;
        10. as to any service or product of any service provider offered through the Service, or the use thereof by any party;
        11. 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
        12. 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.
      5. 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.

 

  1. Limitation of Liability
    1. 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:-
      1. any errors in or omissions from the Service, Data, Results or any of the Material available or not included therein;
      2. the unavailability or interruption to the supply of the Service or any features thereof or the Data, Results or any of the Material;
      3. 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);
      4. Your use of any equipment in connection with the Service;
      5. the content of the Data, Results, Material or the Website;
      6. any delay or failure in performance beyond the reasonable control of a Covered Party; or
      7. any negligence of a Covered Party or its employees, contractors or agents in connection with the performance of MYP’s obligations under this Agreement
      8. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.

 

  1. Indemnity
    1. 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:-
      1. any breach by or on behalf of You of any provision of this Agreement;
      2. any act of negligence committed by or on behalf of You in performing or omitting to perform, its obligations under this Agreement;
      3. any loss suffered by any third party in connection with any act or omission of or on behalf of You;
      4. 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
      5. 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;
      6. any interruptions in access to the Service caused by You.
    2. That indemnity does not extend to claims, damages, liabilities, costs and expenses caused by MYP’s gross negligence or breach of this Agreement.
    3. Each indemnity contained in this Agreement:-
      1. 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;
      2. is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity; and
      3. survives the termination of this Agreement.

 

  1. 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.

 

  1. Dispute resolution
    1. Nothing in this clause Dispute resolution prevents either party from exercising its rights under this Agreement, which may include commencement of court proceedings.
    2. 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.
    3. Each party will bear its own costs in relation to its participation in any dispute resolution process.
    4. Notification
      Where a party claims a dispute (including a breach or an alleged breach) has arisen under this Agreement, then:-

      1. 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);
      2. 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
      3. 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.
    5. 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.
    6. 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.
    7. Continued Performance
      Notwithstanding the existence of a dispute, each party will continue to perform its obligations under this Agreement, wherever practicable.

 

  1. Force Majeure
    1. 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).
    2. Upon cessation of the cause of any Force Majeure, this Agreement will again become fully operative.
    3. In the event of the occurrence of Force Majeure:-
      1. 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
      2. 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
      3. 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
    4. 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:
      1. issue a notice pursuant to clause Notice; or
      2. terminate this Agreement immediately on giving notice in writing to the other Party.
    5. This clause Force majeure (Force Majeure) does not apply to:-
      1. clause Confidentiality (Confidentiality), or clause 7.3 Indemnity (Indemnity); or
      2. 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
      3. 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
      4. 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
      5. 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.

 

  1. Definitions and interpretation
    1. In this Agreement unless the context otherwise requires:
      1. reference to a person includes any other entity recognised by law and vice versa;
      2. the singular includes the plural and vice versa;
      3. one gender includes every gender;
      4. reference to party includes their executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
      5. an agreement, representation or warranty on the part of two or more persons binds each and all of them;
      6. an agreement, representation or warranty in favour of two or more persons if for the benefit of each and all of them;
      7. clause headings are for reference purposes only;
      8. 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.
    2. 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:
          1. financial information such as revenues, expenses, assets, liabilities, profits and losses;
          2. geographical information, such as business premises location, market segment dispersion;
          3. customer and client information, such as type of business, industry or sector, size, location, services and products which they acquire;
          4. marketing information, such as marketing methods, referrals, costs;
          5. supplier information , such as type of business, industry or sector, size, location, services and products they supply; and
          6. 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:
          1. manufacturing;
          2. retail;
          3. export / import;
          4. services; and
          5. 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:
          1. Entitles You to access the relevant online tools, modules, Data, Business Systems, Results and Reports Published by MYP; and
          2. 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:-
          1. other than strictly in accordance with this Agreement;
          2. 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;
          3. 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;
          4. 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;
          5. create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
          6. access the data transmitted via the Service to develop or publish any product in competition with those provided by MYP;
          7. 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.

 

  1. Administrative provisions
    1.  Notice
      1. 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:
        1. MYP at (email address)
        2. You at the address set out in the
      2. Notice will be deemed given, in the case of:
        1. prepaid registered mail, three (3) business days from and including the date of posting;
        2. email receipt by the sender of an acknowledgment or transmission report generated by the machine from which the email was sent;
        3. facsimile, on receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent;
        4. if given within normal business hours, or otherwise notice will be deemed given at the commencement of the first business day thereafter.
    2. 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.

        1. Industry change
          1. In the event of any change in legislation or industry practice, or the content generally available within the Service, that directly or indirectly affects:
            1. the operation of this Agreement or the Service which is material to MYP performing its obligations, including its obligations to You; or
            2. the benefits of this Agreement accruing to MYP;
            3. MYP reserves right to change these Terms & Conditions:
              1. with or without further notice to You;
              2. without giving You any explanation or justification for such change.
            4. 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.
            5. 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.
        2. 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.
        3. 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.
        4.  Waiver
          1. 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.
          2. 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.
        5. Time
          Time will in all respects be of the essence, such that all time periods nominated in this Agreement will apply strictly.
        6. 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.
        7. Taxes and stamp duty
          The parties agree that:

          1. 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.
          2. 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.
          3. 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.
        8. 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.
        9. 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.

partner agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS MYP CERTIFIED PARTNER AGREEMENT CAREFULLY. BY AGREEING TO THE TERMS OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AS FROM THE DATE YOU SUBMIT YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT PROCEED.

These are the standard Terms & Conditions which apply to MYP Certified Partners (You and Your) introducing Subscribers to the Subscription Service owned by (MYP, We, Us and Our) and distributed by Our Licensee MYP Corporation Pty Ltd (MYPCorp).

This Agreement applies in addition to and does not derogate from other terms and conditions that expressly apply to use of the Subscription Service, or any other products or services supplied from, on or by MYH, MYPCorp or the Website.

Operative permissions

  1. GRANT OF RIGHTS
    We grant to You the non-exclusive right from the date of Your acceptance of this Agreement until it is validly terminated to introduce or resell the Products to Subscribers as permitted by this Agreement.
  1. CERTIFIED PARTNER STATUS AND CERTIFIED TRAINER STATUS
    As an MYP Certified Partner, you agree to be allocated the status of MYP Partner. Your obligations and rights as an MYP Partner are as specified in this Agreement and Schedule.

    You agree that We have the right to vary your Status from MYP Partner to MYP Partner (on hold) at any time at Our discretion when you fail to meet the Requirements and/or Sales Targets of the MYP Partner status as specified in this Agreement and Schedule.

    An MYP Certified Partner may also be granted by Us the non-exclusive right to be an MYP Certified Trainer and provide training services to MYP Subscribers on MYP modules in which they have been certified.

    MYP Certified Trainer status may be terminated at any time by Us as a consequence of a breach of this MYP Partner Agreement as specified in section 8 ‘Termination’ and section 6 of the Schedule ‘Requirements to maintain MYP Certified Trainer Status’.

  2. AUTHORITY OF CERTIFIED PARTNER
    1. Relationship
      This Agreement establishes a relationship which is solely that of supplier and reseller of the Products and does not imply a relationship of partnership or joint venture agency or any relationship which would enable You to bind Us.
    2. Authorised Representations
      You may not make any representation regarding the Products to Subscribers which is not set out in Our published specifications and material with respect to the Products and the Documentation. Any contract put forward by You in connection with the Products shall be between the Subscriber and Us, unless otherwise agreed in writing.
    3. Subscriber Support
      We will provide user support to Subscribers and Users who have completed relevant Certified Product Training with Us. Where a user experiences a technical fault, MYPCorp will provide support through the online MYP Support Centre.
  1. OBLIGATIONS OF CERTIFIED PARTNER
    1. Marketing and Promotion of Products
      1. You shall at Your own cost and expense use all commercial endeavours to promote and market the Products, seek orders for the Products, and carry out the other duties specified in this Agreement using all due care and in accordance with sound commercial principles and shall obey all Our instructions in relation to the intended use of the Products.
      2. You shall indemnify Us and keep Us indemnified against any and all loss, fees and costs incurred by Your breach of this Agreement by You including:
        1. any act or neglect or default by Your agents, employees or contractors;
        2. breaches resulting in any successful claim by any third party alleging libel or slander in respect of any claim in any approved documentation or any other matters arising from the resale of the Products PROVIDED THAT such liability has not been incurred by Us through any default on Our part in carrying out the terms of this
      3. You shall pay all expenses of and incidental to performing Your obligations under this Agreement.
  2. INTELLECTUAL PROPERTY RIGHTS
    1. Key terms
      1. Neither this Agreement nor any licence or sub-licence granted hereunder shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Products, Documentation or the Marks to You or any third party.
      2. Except to the extent that We cannot prohibit such acts by law, You agree not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Products and/or Documentation or create derivative works of the same for any purpose (including error correction or any other type of maintenance) without Our prior written consent.
      3. You undertake:
        1. not to cause or permit anything which may damage or endanger Our Intellectual Property Rights or Our title to them or assist or allow others to do so;
        2. not to cause or permit anything which may damage or endanger Our Intellectual Property;
        3. to notify Us of any actual, threatened or suspected infringement of Our Intellectual Property Rights;
        4. to notify Us of any claim by any third party that the Products infringe any Intellectual Property Rights of any third party;
        5. to take such reasonable action as We may direct at Our expense in relation to such infringement claim;
        6. to affix such notices and warnings to the Products or their packaging or advertising as We shall require.
      4. 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 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 this Agreement until:
        1. termination of the Subscriber’s subscription; or
        2. lapse of the Subscriber’s subscription; or
        3. 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;
      5. 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).
    2. License
      We grant to You a limited license to use the Intellectual Property Rights for the purposes of this Agreement but subject to the following restrictions:

      1. the license will be non-exclusive;
      2. You shall not have the right to appoint any sub-licensee; and
      3. You shall have no right to use the Intellectual Property Rights for any purpose other than as is expressly permitted by this Agreement.
    3. Introductions
      We grant to You a right to introduce other Certified Partners to Us. Where You introduce other Certified Partners to Us and the Introduced Certified Partner enters into this agreement with Us and the Introduced Certified Partner introduces Subscribers to Us, You will receive no Remuneration from these Subscriptions.
    4. Assignment
      You hereby assign all Rights, title and interest absolutely both now and in the future to any Improvements and goodwill to Us and in doing so agree to execute all documents and do all things necessary including making full disclosure to assure this assignment.
    5. Third Party Claims
      We shall defend, at Our expense, any claim (the ‘Claim’), brought against You alleging that any Product and/or Documentation as acquired under this Agreement infringes an Intellectual Property Right of a third party. We shall pay all costs and damages awarded or agreed to in settlement of a Claim PROVIDED THAT You furnish Us with prompt written Notice of the Claim and provide Us with reasonable assistance and sole authority to defend or settle the Claim.
  3. PRICES AND CHARGES
    1. Prices
      You shall resell the Products as directed by Us and in accordance with Our pricing policy which may be varied from time to time by Us.
    2. Remuneration
      We shall pay Your Remuneration in the manner specified in the Schedule in this Agreement from all completed Product sales by You.
  4. WARRANTIES
    1. We warrant that the Products shall function in accordance with their specifications as published from time to time by Us in the Documentation.
    2. We make no representation or warranty, express or implied, by way of example, of merchantability or fitness for any particular purpose. We shall not be held to any liability with respect to any claim by You or a third party on account of or arising from the use of the Products.
    3. We shall not be liable to the Certified Partner or any other party for any loss, damage, or injury that results from the use or application by You, a Subscriber, or any other party, of Products delivered to In no event shall We be liable to You or any other party for loss, damage, or injury of any kind or nature arising out of or in connection with these terms and conditions, or any agreement into which they are incorporated, or any performance or non-performance under these terms and conditions by Us, Our employees, agents or subcontractors, in excess of the net purchase price of the Products or services actually delivered to and paid for by You. In no event shall We be liable to You or any other party for indirect, special or consequential damages, including, but not limited to loss of goodwill, loss of anticipated profits, or other economic loss arising out of or in connection with Our breach of, or failure to perform in accordance with any of these terms and conditions, or the furnishing, installation, servicing, use or performance of any Products or information We shall provide hereunder, even if notification has been given as to the possibility of such damages. You hereby expressly waive any and all claims for such damages.
  5. TERMINATION
    1. By Us
      We may terminate this Agreement by 14 days Notice if :

      1. fail to have Subscribers enter into a direct arrangement with Us pursuant to Our Products License terms and conditions; or
      2. fail to pay all prices, charges and fees direct to Us when and as they are due where You have a direct arrangement with Subscribers and are purchasing Our Products and Services on behalf of the Subscriber; or
      3. fail to fulfil any Obligation hereunder despite Notice to You to fulfil such Obligation within fourteen (14) days of Notice; or
      4. the making or filing of an application to wind You up (otherwise than for the purpose of reconstruction or amalgamation) under any law or government regulation relating to bankruptcy or insolvency;
      5. the appointment of a receiver, agent or manager for all or substantially all of Your property;
      6. the making by You of an assignment, arrangement or composition whether formal or informal for the benefit of Your creditors;
      7. the institution by You of any proceedings for the liquidation or winding up of Your business;
      8. or Your staff or representatives fail to implement lawful policies, procedures, systems or processes in relation to the training or coaching of Subscribers as specified by Us; or
      9. fail to comply with all Our policies and processes as reasonably directed, and/or fail to maintain a positive partnering relationship with Us at all times, and/or fail to communicate in a professional and respectful manner with Our staff and Subscribers at all times;
      10. fail to attend or participate in Certified Partner meetings with Us as specified by Us;
      11. fail to achieve the minimum Performance Requirements of an MYP Partner in any 12 month period following the date of commencement as an MYP Partner.
    2. By You
      You may terminate this Agreement by Notice to Us.
    3. Consequences
      If We terminate this Agreement in accordance with clause 8.1 or if You terminate this Agreement in accordance with clause 8.2, You immediately lose all rights as a MYP partner and You shall:

      1. immediately return all Products, all Documents, promotional material brochures and other tangibles supplied Us to You and in Your possession;
      2. within one (1) week of the effective date of termination or expiration of this Agreement, deliver, transfer and return to Us all copies and stocks of all forms, stationery, business cards, advertising material and other printed matter within Your possession, power, custody or control, which bear Our trademarks;
      3. within one (1) week of the effective date of termination or expiration of this Agreement, delete all references, logos, information, images related to Us from Your website, emails and all other electronic formats associated with You and other electronic matter within Your possession, power, custody or control, which bear Our trademarks;
      4. immediately cease to use the Intellectual Property Rights and Confidential Information; and
      5. not hold Yourself out as having any Rights whatsoever in relation to the Products, the Intellectual Property Rights or any association with Us.
    4. In addition, in the event that this agreement is terminated, where You have a direct arrangement with Subscribers, these Subscribers will have their arrangement for use of the Product and Services transferred immediately to Us.
  6. CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
    You shall treat as confidential and not disclose to any third party or use on Your behalf any of Our Confidential Information which You may obtain under this Agreement, except that You may use such information to the extent necessary for the performance of this Agreement.
  7. FORCE MAJEURE
    If a party is prevented, hindered or delayed from performing its Obligations under this Agreement (other than an Obligation to pay money) by an Event of Force Majeure, and that party notifies the other of the event, then as long as that situation continues, that party shall be excused from performance of the Obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the Obligation shall be extended accordingly, but time shall continue to remain of the essence.
  1. RETENTION OF TITLE
    All Products, tools, collateral, systems, methodologies etc supplied by Us to You under the terms of this Agreement shall remain Our sole and absolute property both in law and in equity until You shall have paid the agreed price and, during that time, You acknowledge that You are bailee of the Products for Us PROVIDED THAT no title shall pass in respect of software which is licensed only and any implied or actual licence hereunder is revoked upon non-payment.

    1. The Products shall be at Your insurable risk as soon as they are delivered by Us to Your premises or otherwise to Your order.
    2. Notwithstanding the above provisions, You shall be entitled to resell the Products in the ordinary course of the business but shall account to Us for the proceeds of sale.
  2. GENERAL PROVISIONS
    1. Variation
      We may vary this Agreement with a minimum of thirty (30) days notice. Such notice may be given to you in writing and/or digitally via email, MYP Partner eNews or any other digital format.
    2. Assignment
      You shall not be entitled to assign Your Rights or Obligations under this Agreement without Our prior written consent, which consent may be given or withheld, or given on conditions, that We, in Our absolute discretion, decide (acting reasonably).
    3. Proper Law, Jurisdiction
      This Agreement is governed by and construed in accordance with the laws of Queensland, Australia.
    4. Severability
      If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable such provision shall be forced to the full extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be effected or impaired by it thereby.
    5. Entire Agreement
      This Agreement constitutes the entire agreement between the parties.
  3. DEFINITIONS AND INTERPRETATION
    1. Definitions
      In this Agreement, unless the context or subject matter otherwise require:

      • ‘Annual Partner Points’ means the annual points required by You to retain Partner Platinum status and the benefits of that status as specified in the Schedule;
      • ‘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 MYH’s proprietary framework, program or module;
      • ‘Business System/s Owner’ means any person, business, organisation, Partner or Subscriber who contracts MYPCorp to design, develop, create or construct a Business System or Business Systems;
      • ‘Partner’ means the MYP Certified Partner or MYP Partner;
      • ‘Certified Product Training’ means training provided to Users on the Products by a trainer certified by Us that enables the Subscriber to access Level 2 support from Us;
      • ‘Clear Funds’ means money that has been deposited with Us and is free of any encumbrance and can be used in any lawful manner determined solely by Us;
      • ‘Confidential Information’ shall mean all the information relating to the Products including but not limited to:
        1. the pricing structure for the Products;
        2. business plans, marketing plans, information memorandums, product plans, source code and object code for the Products and trade secrets;
        3. all of Our other trade secrets and proprietary information relating to the Products, business affairs and finances or other information made available to You in confidence and designated as Confidential Information by Us on or before the date of such disclosure.

        The Confidential Information does not include any information that:

        1. is or becomes generally known within the Territory without breach of the terms of this Agreement or any other non-disclosure agreement;
        2. is required to be disclosed pursuant to the order or court or agency or government entity having jurisdiction over You; or
        3. is independently developed by You or is acquired by You from a third party through no act of wrongdoing or breach of any nondisclosure agreement by the Certified Partner or such third party.
      • ‘Current Subscriber/s’ means a person, company, trust or other entity that has subscribed to the Products and who, at that time, are not in breach of any MYP website or subscription Terms + Conditions;
      • ‘Documentation’ means all manuals, documents, brochures and technical information supplied by Us in relation to the Products;
      • ‘Improvements’ means any improvement, modification, enhancement, derivative, application or use of the Products conceived, created or arising during or subsequent to Your access to the Intellectual Property Rights including all Future Rights to such Intellectual Property Rights;
      • ‘Intellectual Property Rights’ means;
        1. jointly and severally any Rights as they relate to Our Confidential Information, trademarks or corporate indicia, the copyright, the design rights, the patent rights, the eligible layout rights, the Improvements; and
        2. any application or Right to apply for registration of any of the Rights referred to in the subclause (a) so far as they relate to, protect or form part of the
      • ‘Introduced Certified Partner’ means a person, company, trust or other entity who was introduced to Us by You and who has subsequently become Our Certified Partner;
      • ‘MYP Partner (on hold)’ means that You are in breach of the minimum MYP Partner Performance Requirements and that all MYP Partner payments to You by Us will cease until You are no longer in breach of the minimum MYP Partner Performance Requirements;
      • ‘MYP Products License’ means the standard terms and conditions entered into between Us and any Subscriber as detailed on Our website which may be varied by Us at any time in accordance with those terms and conditions;
      • ‘Notice’ means a written notice, consent, approval, direction, order or other communication;
      • ‘Obligation’ means any legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;
      • ‘Products’ means MYP modules, apps, diagnostics, systems, reports, applications delivered in a Software-as-a-Service environment by Us and as they exist and are developed from time to time and over time;
      • ‘Remuneration’ means the amount paid to Partners and/or Business System Owners as specified in the Schedule;
      • ‘Right/s’ means an entitlement to ownership of property or some interest in either real or personal property;
      • ‘Sales Target’ means the annual Product sales target for Certified Partners as specified in the Schedule in this Agreement;
      • ‘Services’ means information, consulting, training, coaching, support and any other services provided by Us through Our staff, representatives, contractors or the MYP application;
      • ‘Specified Persons’ means the person named as such in the Reference Schedule;
      • ‘Subscriber’ means a person, company, trust or other entity that has subscribed to the Products;
      • ‘Users’ means a person who has been granted access to the Products by a Current Subscriber.

 

Schedule

  1. Certified Partner Status Requirements, Sales Targets & Remuneration
    We offer two (2) types of Certified Partner Status and, unless otherwise agreed in writing by Us, the Partner Remuneration for each Certified Partner level is as specified below:

    Partner Level Description of Requirements Performance Requirements1 Partner Remuneration2
    MYP Partner Introduces Subscribers to MYP and/or processes new subscribers through the MYP website Introduce/secure a minimum of three (3) new Subscribers during any 12 month period following the date of commencement as an MYP Partner 10% of subscription income from introduced Subscribers for the term of their subscription while MYP Partner status in force
    Education Partner Achieves the minimum Sales target requirements Secure at least 10 surveys during each 12 month period following date of commencement as an Education Partner 20% reduction on standard School Results Surveys subscription fee

    1 Where an MYP Partner fails to meet their Performance Requirements, they will lose their entitlement to Partner Remuneration until the Performance Requirements have been met.

    2 You are responsible for ensuring Your unique Certified Partner code is entered when introducing or subscribing a new Subscriber to MYP. Failure to comply with this may result in the Subscriber not being connected to You and, as a consequence, the Certified Partner Remuneration will not be paid to You. You agree that We will not be liable for Partner Remuneration where You have failed to provide your Certified Partner code when subscribing a new Subscriber.

  2. Commercial Relationship with Subscribers
    You (excluding Education Partners) determine who has the commercial relationship with the Subscriber and this selection is made in the subscription process. This choice will impact on billing and payment arrangements between the parties. Education Partners will always have the commercial relationship with the School Results Surveys (SRS) Subscriber.Where You have the direct commercial relationship with the Subscriber (i.e. where the Subscriber remits MYP fees and subscription income direct to You), You have the financial and legal responsibility for paying to Us all fees for the Subscriber relating to the development, training and use of the Products, less the amount that would be paid by Us to You as specified in this Schedule.

    Subscriber commercial relationship with… Billing to Subscriber Payment to CP/IPO
    Us We will invoice all services and subscriptions to the Subscriber We will pay all income due to You and any other relevant party by the 10th business day of the month following when payment was made by the Subscriber.
    You You will invoice all services and subscriptions to the Subscriber We will invoice You on the last day of the month for Our income for that month. You agree to pay the invoice in line with the invoice terms. We will then remit any amount due to any other party.
  3. Commercial Relationship with Business System Owners
    Unless otherwise agreed in writing by Us, Business System Owners whose Business Systems were first offered for subscription on the MYPCorp Marketplace from 1 January 2015 will receive Remuneration equal to 40% of subscription revenue earned from Subscribers to the Business System owned by the Business System Owner and offered for subscription in the MYPCorp Marketplace.
  4. Payment of Remuneration
    We will pay all Remuneration due to You within ten (10) business days of the month following the date We received Clear Funds from the Subscriber.
    You will pay all prices, cheques, fees due to Us by You in accordance with the terms of trade specified on Our invoice to You.
  5. To maintain Certified Trainer status, the trainer is required to:
    • participate in scheduled MYP Certified Trainer meetings unless otherwise agreed by Us and actively contribute to ongoing training innovations
    • attend scheduled product demonstrations and Partner workshops to ensure current knowledge of MYP modules including upgrades unless otherwise agreed by Us
    • attend the annual MYP Conference
    • retain MYP Partner status at all times
    • provide training services on Our behalf to MYP Subscribers as reasonably directly by Us at the commercial rates agreed
    • comply with all MYP policies and processes as directed
    • use the MYP training system to manage and process any and all MYP Product training sessions and Rollout programs
    • maintain an average rating of greater than 0 on training session feedback surveys over any 6 month period
    • provide evidence of a strong Partner approach with MYP at all times
    • maintain a strong partnering relationship with Our staff that is positive, respectful and collegial
    • communicate in a professional and respectful manner at all times, in both verbal and written form, with Our staff and Subscribers and their employees, consultants, contractors, suppliers so that both You and Us are viewed positively by these stakeholders
    • accurately declare all rollout/training/set-up fees/revenue to MYP at all times and pay Our share of these fees/revenue as specified by Us in accordance with MYP terms of trade