This is a contract between you ("you" or "your") and The Resilience Report Online Web Services ("The Resilience Report"). It states the terms and conditions which apply to your purchase and use, in any manner, of the The Resilience Report online game and services (the "Services"), which reside on, and are described at http://www.theresiliencedoughnut.com.au (the "Site").
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO. YOU ARE SOLELY RESPONSIBLE FOR USE OF THE SERVICES BY YOU OR YOUR CHILDREN (COLLECTIVELY, THE “END-USERS”). YOU AGREE TO ENSURE THAT, END-USERS COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO.
The Resilience Report reserves the right to change or modify this Agreement, and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to customers. Any changes or modification will be posted by The Resilience Report, and become effective upon posting of the revisions on the Site. You are responsible for regularly reviewing the Site to obtain timely notice of such changes or modifications. Your continued use of the Services following The Resilience Report’s posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY PROVIDE NOTICE OF TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 1.1 BELOW.
1.1 Term and Termination. The Services shall be provided to you each year. You will continue to receive Services so long as you continue to pay amounts when due and payable. The last day of the year for which you have paid for the Services shall be the "Termination Date". Either party may at any time terminate this Agreement, prior to the Termination Date. No credits shall be provided to you for the value of the Services between the date that you notify The Resilience Report that you no longer wish to receive the Services and the Termination Date.
You agree to pay all fees and charges (and applicable taxes) incurred which relate to your use of the Services, in accordance with the rates, terms and conditions established from time to time by The Resilience Report. Such rates, terms and conditions will be posted on the Site or otherwise made available to you by The Resilience Report. The Resilience Report shall begin charging you on the date that you subscribe for the Services, unless otherwise specified by The Resilience Report. All fees or prices on the Site are net of tax and you shall be responsible for the payment of all taxes including a 10% Goods & Services Tax (GST) that is included in your purchase as required under Australian taxation law. Overseas purchasers are not exempt from paying GST, but may apply directly to the Australian Taxation Office for it to be reimbursed where eligible. The Resilience Report makes no warranty that any application for reimbursement of GST will be successful and accepts no liability therefore. All purchasers will be issued with a Tax Invoice as required by Australian law.
1.5 Payment. All charges for the Services must be paid in advance according to the then current price applicable to the Services. When ordering the Services through the sign-up server at the Site, you must elect to pay for the Services by credit card, PayPal, Direct Deposit or Cheque. The Resilience Report reserves the right to modify the forms of payment it will accept, at any time, in its sole discretion.
1.6 Credit Card Payment. When you pay for the Services by credit card, you expressly authorize The Resilience Report or its agents to charge all fees and charges incurred by you or the End-Users under this Agreement to such credit card, and such authorization will survive termination of this Agreement until there are no charges owing by you under this Agreement. If you use a credit card and The Resilience Report does not receive payment from the card issuer, you agree to pay all amounts due, upon demand by The Resilience Report. You must notify The Resilience Report of any changes to your credit card account (including, without limitation, applicable account number or cancellation or expiration of the account),your billing address, or any information that may prohibit The Resilience Report from charging your account.
1.7 Failure to Pay. If you fail to pay any fees and taxes within ten (10) days from applicable due date for credit card payments, late charges of the lesser of one and one-half per cent (1.5%) per month (i.e. 18% per annum) or the maximum amount allowable under applicable law shall also become payable by you to The Resilience Report. In addition, your failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, which shall result in the immediate suspension of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstating the Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, legal fees, court costs and collection agency fees.
2.1 Responsibility for Use. You are responsible for use of the Services and the maintenance of all passwords related to the Services. You are responsible for obtaining all necessary consents from any users or the parents or other legal guardians of users of the Services. You are solely responsible and liable for any and all activities that occur in respect of your use of the Services, including without limitation all activities of any users authorized by you or using your passwords. You are also responsible for maintaining the confidentiality of all passwords related to your use of the Services. You agree to immediately notify The Resilience Report of any unauthorized use of the Services or your passwords or of any other breach of security and to provide assistance to The Resilience Report, as requested, to stop, prevent or remedy any breach of security.
You are responsible for ensuring that all staff members agree to use the Services in accordance with the rights and obligations of the User that authorises their access.If a User is a Child he or she must obtain consent from their parent or legal guardian before using the Services.The User agrees and warrants that:(a) it shall not store or record any Health Information (as such term is defined in the Privacy Act) that it can access through the Services unless it is fully compliant with the Privacy Act;(b) it shall not disclose any information, other than to its authorised employees, volunteers or other personnel of the User, about an individual to any other person or party other than as authorised by the individual or the User;(c) it shall ensure all personal information it has access to through its use of the Services is kept and used in accordance with the Privacy Act;(d) it shall only use the Services for its intended purpose as set out in this Agreement;(e) it shall comply with all anti-SPAM legislation in its jurisdiction;(f) it is solely responsible for the use of the Content information uploaded or input through the Services by any of its employees, volunteers or other personnel;The User agrees that any consent made by a User through the Services is valid and binding unless and until revoked by the User, and the Resilience Report may rely on a consent made through the Services without any need to further verify the veracity of that consent;
The User agrees that when it provides any consent, authority or agreement through the Services it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.The Resilience Report does not guarantee the validity of any electronic transaction.The User agrees that any request for a consent, authority or agreement it sends to other Users through the Services as an electronic transaction shall be sent directly from its email address.
2.2 Applicable Policies and Agreements.
The The Resilience Report Acceptable Use Policy at http://www.theresiliencedoughnut.com.au/conditions.php#use_policy governs the general policies and procedures for use of the Services.
All agreements and policies may be updated or amended by The Resilience Report from time-to-time and your continued use of the Services shall be deemed to be acceptance of the amended terms and conditions.
3.1 The Resilience Report Property. You hereby acknowledge and agree that all programs (in object code and source code form), data, services, processes, designs, technologies, materials and all other things comprising the Services are owned by and shall remain the sole property of The Resilience Report, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws.
3.2 Your Content. The Resilience Report does not claim ownership of information, materials, or other content (the "Content") that you post, upload, input, provide, submit or otherwise transmit to The Resilience Report, using the Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to The Resilience Report or any third party, using the Services, you have thereby granted The Resilience Report a perpetual, royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such content to the extent reasonably required by The Resilience Report for the purposes of rendering and operating the Services to you under this Agreement or to ensure adherence to or to enforce the terms of this Agreement You expressly (a) grant to The Resilience Report a license to cache the Content, and (b) agree that such caching is not an infringement of any of your rights or any third party's rights.
All Content about an individual is used and controlled by the User and not the Resilience Report. All Content provided through the Services about an individual is provided with that individual’s consent.
4.1 Investigation of Violations. The Resilience Report may investigate any reported violation of this Agreement, its policies and guidelines or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its interests, including without limitation, its systems, servers, facilities, customers and/or third parties.
4.2 Actions. The Resilience Report reserves the right in its sole and absolute discretion to restrict or remove from its servers any content that it deems to be in violation of this Agreement, its policies or guidelines, third-party intellectual property rights or any laws. The Resilience Report may immediately take action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Services, (c) restricting or prohibiting any and all uses of content hosted on The Resilience Report’s systems, and/or (d) disabling or removing: (i) any hypertext links to third-party web sites, (ii) any of your content distributed or made available for distribution via the Services, or (iii) other content not supplied by The Resilience Report. The above stated rights of action, however, do not obligate The Resilience Report to monitor or exert editorial control over the information made available for distribution via the Services and you acknowledge that The Resilience Report has no obligation to censor or monitor use of the Services by you, or any obligation to censor or monitor any content, material or other information sent, received or accessible through the Services. In the event The Resilience Report takes action due to such possible violation, The Resilience Report shall not be obligated to refund to you any fees paid in advance of such action.
5.1 Your Warranties and Representations to The Resilience Report. You warrant, represent, and covenant to The Resilience Report that (a) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for use of the Services; (e) you will be responsible for the accuracy, quality and legality of your Content; and (f) your Content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
5.2 Warranty and Disclaimer. THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. The Resilience Report DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ALTHOUGH The Resilience Report WILL USE COMMERCIALLY REASONABLE MEASURES TO MAINTAIN THE SECURITY OF THE SERVICES, The Resilience Report ASSUMES NO RESPONSIBILITY FOR THE EFFECTIVENESS OF THESE SECURITY MEASURES PROVIDED BY The Resilience Report.
6.1 Exclusion of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL The Resilience Report, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUPPLIERS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, THE "The Resilience Report ENTITIES" AND EACH, A "The Resilience Report ENTITY") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, OPPORTUNITY, EARNINGS, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF The Resilience Report ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO DELAYS, ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, VIRUSES OR DEFECTS IN THE TRANSMISSION OF ANY INFORMATION, MATERIAL OR DATA OVER OR THROUGH The Resilience Report’s SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES.
6.2 Limitation of Liability. CIRCUMSTANCES MAY ARISE IN WHICH YOU ARE ENTITLED TO RECOVER DAMAGES FROM ONE OR MORE OF The Resilience Report ENTITIES. IN SUCH INSTANCE, THE AGGREGATE LIABILITY OF The Resilience Report ENTITIES FOR DAMAGES IS LIMITED TO THE LESSER OF (A) THE AMOUNT ACTUALLY PAID TO The Resilience Report BY YOU UNDER THIS AGREEMENT DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED OR (B) THE SUM OF ONE HUNDRED (AU$100.00) AUSTRALIAN DOLLARS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY The Resilience Report HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE The Resilience Report ENTITIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS PARAGRAPH.
6.3 Interruption of Service. You hereby acknowledge and agree that The Resilience Report and its suppliers will NOT be liable for any delay, outages or interruptions of the Services. Further, The Resilience Report shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electrical electronic, communications or third-party supplier failure).
7.1 Indemnity to The Resilience Report. You hereby release and hold harmless, and agree to indemnify, The Resilience Report Entities against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys fees and other litigation expenses) suffered or incurred by The Resilience Report Entities, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your use or the use by any End User as permitted by you of the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).
7.2 Third Party Beneficiaries. You are hereby notified that The Resilience Report Entities are intended third-party beneficiaries of this Agreement, with a right of enforcement of the exclusions and limitations of liability and the indemnities contained in this Agreement.
8.3 The Resilience Report makes no warranty as to the suitability of the Services in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether the Services is appropriate for the User’s circumstances.
9.1 Entire Agreement. This Agreement, including any domain registration agreements, documents, web sites, rules, terms, policies and guidelines referenced herein, constitutes the entire agreement between The Resilience Report and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between The Resilience Report and you with respect to such matters.
9.2 No Waiver. The failure of The Resilience Report to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and The Resilience Report nor trade practice shall act to modify any provision of this Agreement.
9.3 Severability. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of you and The Resilience Report, and the remainder of this Agreement shall remain in full force and effect.
9.4 Choice of Laws. This Agreement and its performance shall be governed by the laws of the state of Queensland, Australia, without regard to its conflict of laws provisions. You consent and submit to the exclusive jurisdiction of the state and federal courts located in the state of Queensland, Australia in all questions and controversies arising out of your use of this site and this Agreement. Use of the Services in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph, is prohibited.
9.5 Successor Sites. All references to The Resilience Report web site addresses in this Agreement shall also include any successor, duplicate, related or replacement web sites containing substantially similar information as the referenced web site(s).
9.6 Assignment. The Resilience Report may at any time assign its rights and obligations under this Agreement, in whole or in part, without notice to you. You may not assign this Agreement.
9.7 Enurement. This Agreement will enure to the benefit of and bind you and The Resilience Report and its respective personal and legal representatives, successors and permitted assigns.
9.8 Currency. All monetary amounts expressed in this Agreement are in Australian dollars, unless otherwise expressly stated.
9.9 Cumulative Rights. The rights, powers and remedies of The Resilience Report in this Agreement, including without limitation the right to suspend, restrict or terminate Services, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to The Resilience Report at law or in equity.
9.10 Survival. Any provisions, including without limitation the disclaimers of warranty and limitations and exclusions of liability contained herein, that by their meaning are intended to survive termination of this Agreement shall survive the termination of this Agreement.
9.12 Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
9.13 Notices. Any notices or other communications sent by The Resilience Report to you shall be deemed to have been duly given and delivered to you when delivered by email to the account specified by you when first ordering the Services
Any notices or other communications sent by you to The Resilience Report shall be deemed to have been duly given and delivered to The Resilience Report when delivered by email to firstname.lastname@example.org or by fax to (02) 9034 4534.
PLEASE READ CAREFULLY BEFORE USING OUR SERVICES. THIS ACCEPTABLE USE POLICY CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND The Resilience Report Online Web Services ("The Resilience Report", "WE" OR "US") a provider of online services ("Services").
YOU AGREE TO REFRAIN FROM THE FOLLOWING EXAMPLES OF PROHIBITED CONDUCT. IF YOU ARE ACCEPTING ON BEHALF OF A CHILD ("End-User"), YOU REPRESENT AND WARRANT TO The Resilience Report THAT YOU WILL EXPLAIN THIS POLICY TO THE END-USER AND ENSURE THAT THE END-USER ABIDES BY THIS POLICY; AND IF YOU DO NOT AGREE TO ABIDE BY THIS POLICY PLEASE DO NOT USE OUR SERVICES.
B. PROHIBITED CONDUCT
You or the End-User will violate this Policy if you engage in the following examples of prohibited activities while using our Services:
(a) Spamming -- Sending unsolicited bulk and/or commercial messages using the Services (known as "spamming")
(b) Facilitating a Violation of this Policy -- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this Policy
(c) Infringing Intellectual Property Rights -- Engaging in any activity that (a) infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities (b) violates privacy, publicity, or other personal rights of others
(d) Obscene Speech or Materials -- Using The Resilience Report Services to advertise, transmit, store, post, display, or otherwise make available child pornography or other forms of pornography or obscene speech or material. The Resilience Report shall notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through The Resilience Report Services
(e) Promoting Violence or Injury -- (i) Advocating, promoting or providing assistance in carrying out violence or any other unlawful activity against any persons, animals or any governments, businesses or other entities, (ii) Describing or displaying a weapon, or parts of weapons, or manuals for assembling any weapon, including but not limited to firearms, ammunition, explosives, grenades, bombs and caustic or other dangerous substances, or (iii) Promoting products or services that involve a significant risk of death or injury to any persons, or damage to business or other entities or property
(f) Defamatory or Abusive Language -- Using The Resilience Reports Services as a means to transmit or post defamatory, harassing, stalking, abusive, or threatening language
(g) Illegal or Unauthorized Access to Accounts -- (i) Accessing illegally or without authorization accounts belonging to another party, or attempting to penetrate security measures of another individuals system (often known as "hacking"), or (ii) Engaging in any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity)
(h) Illegal Activities -- Engaging in activities that are determined to be illegal
(i) Instructing others in Prohibited Activities -- Providing instructions to others with respect to engagement in any prohibited activities listed above
(j) Other Activities -- Engaging in any other activity, whether lawful or unlawful, that The Resilience Report in its sole discretion determines to be harmful to the Services, customers, operations, reputation, goodwill, or customer relations.