TERMS & CONDITIONS

ONLINE TERMS AND CONDITIONS 

1. ACCEPTANCE
   • These Terms and Conditions (Terms) are between THEOUTPERFORMER PTY LTD (ABN 69 608 961 780) its successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity that wishes to access career information and career management tools and services (Services) from us (referred to as “you” or “your”), and collectively the Parties. These Terms apply to all sales made by us to you.
   • Our Services are available at theoutperformer.co (Site).
   • You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details at the end of these Terms.  
   • You accept these Terms by ticking the online acceptance box, by making a purchase from us or using our Services. Using or purchasing our Services indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older. You must not order or use the Services if you are under 18 years of age.  If you do not agree to these Terms, you should not use or purchase our Services from us. 
2. REGISTRATION AND SERVICES
   • Access to some of our Services may require you to:

• obtain a valid membership (Membership) by subscribing for a minimum period of 12 months or such other period of time as set out on the Site (Membership Period) and pay a monthly or annual Membership fee (Membership Fee). You may request our Services and Membership as an individual (Individual Membership) or as a business (Enterprise Membership); and
• register for an account (Account). If you hold an Individual Membership you are permitted to register for one Account. If you hold an Enterprise Membership, you may create a limited number of Accounts for users accessing the Services under your Membership (Permitted Users) as set out on the Site.
• From September 2017, a "Standard Membership" is available and there is no cost for subscription. Only services available and described on the website as included in the Standard Membership will provided and can change at our discretion.
• Various products and services provided by The Outperformer and/or partnerships may be purchased on the site. Any fees paid are non-refundable and it is your responsibility to attend, address or act on provided services within the timeframes presented at the time of purchase.
  
  • It is your responsibility to keep the details of your Account(s), including user name and password, confidential. You are liable for all activity on your Account, including any purchases made using your details.
  • Basic information is required when registering on the Site for an Account. You (or the Permitted Users) are required to provide certain information including name and email address and select a user name and password.
  • We agree to perform the Services with due care and skill.
  • We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
  • We may provide the Services to you (and Permitted Users) using our employees, contractors and third party providers and they are included in these Terms.
  • Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the products or services provided by Third Parties.

3. PRICE, INVOICING AND PAYMENT
   • Where applicable, you agree to pay us upfront:

• the Membership Fees on a monthly or annual basis; and
• the fees, including payments and expenses for the Services that you have requested, as set out on the Site, (collectively the Fees) at the time you request our Services or at the time you register for an Account, as applicable. The amount of Fees and when they are payable may differ subject to your request for our Services including: (i) whether you are requesting an Individual Membership or an Enterprise Membership; (ii) the duration of the Membership Period; and (iii) the types of Services requested.
  • If Membership Fees are payable, you agree to pay the Membership Fee for the first month or year (as applicable) prior to or at the time you register for an Account.
  • You agree to pay the Fees by way of credit card or other payment methods as set out on the Site and, if necessary, you agree to enter into any direct debit arrangement as set out on the Site.
  • All amounts are stated in Australian dollars. All amounts charged include Australian GST (where applicable). 
  • As indicated on the Site, payment options for the Fees in respect of Services may differ between the Services. Some of the Services require full Fees to be paid upfront, others allow Fees to be paid in monthly or annual instalments. For Membership Fees, if we do not receive a Membership Fee in full on its due date for any reason, we will not provide you (and the Permitted Users where applicable) with access to the Site, Services and any Account(s).
  • You must not pay, or attempt to pay, any Fees through any fraudulent or unlawful means. If a payment is not able to be successfully processed then you may not be able to access the Services or your Account.
  • Payment will be taken once monthly in advance. Your payment day is either the 1st or the 15th day of teh month, whichever first succeeds your signup day.
  • Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for Services provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on our Site or are provided to you, whichever is earlier.

4. YOUR OBLIGATIONS AND WARRANTIES
   • You warrant that throughout the term of these Terms that:

• if you are obtaining a Membership on behalf of an entity whether incorporated or otherwise, you have the power and authority to agree to these Terms;
• there are no legal restrictions preventing you from agreeing to these Terms;
• you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
• the information you provide to us is true, correct and complete;
• you will not infringe any third party rights in working with us and receiving the Services;
• you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
• you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
• you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you or a Permitted User;
• if you hold an Enterprise Membership, you agree to ensure each Permitted User uses the Site and Services in accordance with these Terms;
• if applicable, you hold a valid ABN which has been advised to us; and
• if applicable, you are registered for GST purposes.

5. FORUM
   • The Site offers a forum for Account holders to communicate. We ask you (and each Permitted User) to limit their discussions to those which are relevant to the Site and Services.
   • We reserve the right to remove any posts by you which we, at our sole discretion, deem to be inappropriate.
   • You acknowledge and agree that you are not permitted to post any posts or content which contain foul language, illegal material, defamatory comments, business advertisement, spam, religious debates, comments which incite fear and/or any form of abuse, insults or personal attacks.
   • You agree that you are solely responsible for any and all content and Intellectual Property you (or a Permitted User) makes available through the Site and Services (Your Content). You represent and warrant that:

• you are the sole and exclusive owner of, or you hold the appropriate licence, rights, consents and releases as necessary to, all Your Content you make available through the Site and Services;
• by making available Your Content on or through the Site and Services, you grant us a perpetual, irrevocable, non-exclusive, transferable, world-wide, royalty-free licence to use Your Content with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access or otherwise exploit Your Content on, through or by means of the Site and Services for marketing or promotional purposes or as required for us to provide our Services; and
• Your Content and the posting, upload, publication, submission or transmission of your Content or use of Your Content (or any portion thereof) on, through or by means of the Site and the Services will not infringe, misappropriate or violate a third party’s Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

6. DISCOUNT CODES AND PROMOTIONS
   • We may from time to time offer promotional discount codes, which may be applicable to our Services on the Site, and must be entered at the time of ordering the Services. The conditions of use relating to any discount code will be specified at the time that it is issued.
7. OUR INTELLECTUAL PROPERTY
   • The work and materials that we provide to you (and your Permitted Users, where applicable) in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
   • We provide the Materials for your (or each Permitted User’s, as applicable) exclusive, non-commercial use only.
   • You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission. If you would like to use our materials, please contact us at enquiries@theoutperformer.co .
   • Your (or your Permitted Users’, where applicable) use of our Materials does not grant you (or the applicable Permitted User) a licence, or act as a right to use, any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
   • You must not breach our Intellectual Property rights by, including but not limited to:

• altering or modifying any of the Materials;
• creating derivative works from the Materials; or
• using our Materials for commercial purposes such as onsale to third parties.

Where applicable you will ensure that your Permitted Users do not breach our copyright or intellectual property rights.

• Upon receipt of the applicable Fees, we grant you (and your Permitted Users, where applicable) a non-exclusive, revocable, non-transferable licence to use the Materials in Australia for personal, non-commercial purposes for the Membership Period. For the avoidance of doubt, any licences granted to you or a Permitted User under these Terms shall be revoked on termination of these Terms.

8. FEEDBACK AND DISPUTE RESOLUTION
   • Your feedback is important to us. We seek to resolve your concerns quickly and effectively.  If you have any feedback or questions about the Services, please contact us.
   • If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

• The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
• If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator.  The mediator will decide the time and place for mediation.  The Parties must attend the mediation in good faith, to seek to resolve the dispute.
  • Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

9. CANCELLATION AND TERMINATION
   • The Parties may terminate these Terms by mutual agreement, upon 60 days’ by written notice including by email.
   • Either Party may immediately terminate these Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
   • We may terminate these Terms immediately, at our sole discretion, if:

• you fail to pay any or all of the Fees;
• we discover that you are (or any Permitted User is, where applicable) sharing our Materials or Account details with a third party;
• we consider that a request for the Service is inappropriate, improper or unlawful;
• you fail to provide us with clear or timely instructions to enable us to provide the Services;
• we consider that our working relationship has broken down including a loss of confidence and trust;
• you (or your Permitted Users, where applicable) act in a way which we reasonably believe will bring us or our Site into disrepute;
• you provide us with incorrect payment details or any other incorrect information;
• for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or
• you (or any Permitted User, where applicable) misuses the Services, Site and Material in any way.
  • You may cancel your Account and Membership via the Site prior to the expiry of your Membership Period. If you do we will not charge you any further Fees, including Membership Fees to your credit card. Unless otherwise stated in these Terms, we may offer any refund upon cancellation at our sole discretion.
  • If you hold an Individual Membership and you cancel your Account and Membership you may receive a refund of the applicable Membership Fee paid up to the date of cancellation (and which relate to the period following cancellation) less the Cancellation Fee.
  • If you hold an Enterprise Membership, you may add or remove the number of Permitted Users in accordance with your Membership. Any removal of a Permitted User does not suspend the Membership Period. If you remove a Permitted User from your Membership within the Membership Period, you may do so via the Site. You may nominate another individual as a replacement Permitted User to use the Services for the remaining period until the expiry of Membership Period.
  • On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
  • On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
  • In accordance with our provision of Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
  • The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.

10. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
    • ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms.
    • Services: If you are a consumer as defined in the ACL, the following applies to you: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
    • Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in the period set out on the Site where it is affected by your delay in response, or supply of incomplete or incorrect information.
    • Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services.  We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
    • Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    • Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:

• implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
• the Services being unavailable; and
• any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you (or your Permitted Users, where applicable) or claims made against you (or a Permitted User, where applicable), arising out of or in connection with the Site, Services or use any Materials or information contained on the Site or your (or your Permitted Users’, where applicable) inability to access or use the Services, the Site or any Materials and the late supply of Services, and the provision by you (or your Permitted Users, where applicable) of services using or based on the information gained from the Site, or our Material, even if we were expressly advised of the likelihood of such loss or damage.
  • Limitation: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
  • Information: While the information and material on the Site, in the Materials or otherwise provided to you by us is provided in good faith on an “as is” basis, we and our directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you, a Permitted User or to any other person as to the reliability, accuracy, currency or completeness of the information in the Materials or information generally contained on the Site. Any reliance you place on the Materials or information contained on the Site is entirely at your own risk.
  • This clause will survive termination of these Terms.

11. DISCLAIMER
    • No warranty is, or intended to be, given as to the accuracy or reliability of the information on the Site, Services or Materials or that the Materials and the Services will meet or comply with:

• your continuing professional development obligations if applicable; or
• any requirements for membership of any professional body including the ICAA, CPA, ACCA or CIMA.
  • You agree that any information, insights or guidance contained in our Site, Services or Materials are not an attempt provide professional advice. It is not to be used or relied on as professional advice. You should exercise your own independent skill and judgment before relying on any information on the Site. Use of our Site, Services or Materials does not establish a professional-client relationship. The information on the Site and Materials should not be used as a substitute for professional advice or other such services.
  • The Site, Services or Materials do not take into account your (or your Permitted Users’, where applicable) personal circumstances. They are not intended to be advice, they are not intended to be relied upon and they are not a substitute for professional advice based on your (or each Permitted User’s, where applicable) personal circumstances.
  • You are solely responsible for determining the suitability of any of our Services and you (and you agree your Permitted Users, where applicable) rely on any information that is provided through our Site, Services or Materials at your/its own risk.
  • This clause will survive termination of these Terms.

12. INDEMNITY
    • You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

• any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
• any breach of these Terms; and
• any misuse of the Services, the Site or the Materials from or by you, a Permitted User (where applicable), your employees, contractors or agents.
  • You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
  • The obligations under this clause will survive termination of these Terms.

13. GENERAL
    • Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
    • Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
    • GST: If and when applicable, GST payable on the Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
    • Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
    • Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
    • Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
    • Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days' notice in writing.
    • Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address in your Account. Our address is set out at the end of these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
    • Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
    • Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
14. DEFINITIONS
    • Cancellation Fee means a fee equal to 3 months of the Membership Fee for the Membership Period.
    • Claim(s) includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement or otherwise.
    • Confidential Information includes confidential information about you or your Permitted Users (where applicable), your credit card or payment details, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".
    • GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
    • Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs (whether or not registered or registrable), any corresponding property rights under the laws of any jurisdiction, discovery, circuit layouts, trade names, trade secrets, secret process, know-how, concept, idea, information, process, data or formula, business names, company names or internet domain names.
    • Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).