TERMS OF USE - Elkiem

ACCEPTANCE

These Terms of Use are entered into by and between you and the operators, administrators and legal representatives of the Platform running under brank name of Elkiem (hereinafter referred to as “Company”, “we” or “us”). The following terms and conditions, together with any documents/links expressly incorporated by reference (collectively, these “Terms of Use”), govern your access to and use of: our website at https://www.elkiem.com/ (the “Site”), and other related products and/or content (collectively, including the Site, are hereinafter referred as the “Platform“), which includes but not limited to any content, product, functionality and/or services offered on or through the foregoing, focused on leadership development, high performance education, and the dissemination of specialized research, whether as a guest or a registered user. The materials contained in this Platform are protected by applicable copyright and trademark law.

PLEASE READ THE TERMS OF USE CAREFULLY. BY USING THE SITE AND PLATFORM, YOU AGREE TO BE BOUND AND ABIDE BY THE TERMS SET FORTH HEREIN AND OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF USE OR PRIVACY POLICY, YOU MAY NOT USE THE SITE AND PLATFORM. IF YOU ARE USING THE SITE OR UTILIZING THE PLATFORM ON BEHALF OF A BUSINESS OR SOME OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO GRANT ALL LICENSES SET FORTH IN THESE TERMS OF USE AND TO AGREE TO THESE TERMS OF USE ON BEHALF OF THE BUSINESS OR ENTITY.

INTRODUCTION, ACCESS AND USE

The Platform is specific to the tools and services available via Site only. In addition to the Site, a module/diagnostic tool identified as High-Performance Environmental Structure (HPES) is available that describes the nine components that exist in all performance environments and the balance which stimulates the best possible performance from the individuals within them. Furthermore, there is a Diagnostic Tool with the purpose to accurately pinpoint which components are absent/lacking in the User and what changes could be made to effect significant performance improvements. The HPES Diagnostic Tool measures the quality of both the formal/structured and the informal/fluid high performance systems. In addition to the foregoing, the Education Tool is incorporated that is a web-based training resource with the purpose of individuals to learn key concepts regarding the HPES and to assist with education of the HPES philosophy in an on-line environment. For avoidance of doubt, this Terms of Use is particularly in relation to the access and Use of Platform which is independent of the HPES.

You agree to use the Site only for lawful purposes and in accordance with these Terms of Use. You hereby represent and warrant that you are 18 years of age or older and have the legal authority to enter into these Terms of Use. By using the Platform, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.

You agree to not use Platform to conduct any activity that would constitute a civil or criminal offence or violate any law. You agree not to attempt to interfere with our Site, Platform, network or security features or to gain unauthorized access to our systems.

These Terms of Use outline the terms on which the Company has agreed to grant you access to the Site. By using the Platform and accessing the Site, you acknowledge that you have read, understood, and accepted these Terms of Use. You confirm that you have the authority to act on behalf of any person or entity for whom you are using the Platform, and by using the Platform, you are deemed to have accepted these Terms of Use on behalf of any such entity.

CHANGES TO THE TERMS OF USE

We may revise, modify, change and update any portion of these Terms of Use from time to time in our sole discretion and without prior notice. All changes are effective immediately when we post them on Site or as otherwise notified to the Users via e-mail or any other means of communication.

Your continued use of the Platform following the posting of revised terms of use means that you accept and agree to the changes. You are expected to check our page from time to time so you are aware of any changes, as they are binding on you.

ACCESSING THE SITE/PLATFORM AND ACCOUNT SECURITY

We reserve the right to withdraw or amend the Platform, and any service or material we provide on the Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some or all parts of the Platform, to users, including registered users.

You are responsible for: (i) making all arrangements necessary for you to have access to the Platform; and (ii) ensuring that all persons who access the Platform through your internet connection are aware of these Terms of Use and comply with them.

To access the Platform or some of the resources it offers, you may be asked to provide certain registration details and in order to do so you will have to provide accurate personal information, such as your email address, mailing address and other contact details in order to complete your order or contact you as needed or other information. It is a condition of your use of the Platform that all the information you provide on the Platform is accurate, current and complete. You agree that all information you provide to register with the Platform or otherwise, including but not limited to through the use of any interactive features on the Platform, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. You agree to promptly update your account and information. You authorize us to collect and use this information to contact you in accordance with our Privacy Policy.

If you choose, or are provided with, a username, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

The payment modality and pricing for any purchase through Platform will be reflected on Site. You agree and acknowledge to provide accurate and complete payment information when making a purchase. All payments are non-refundable unless otherwise explicitly specified by us. Upon successful payment, the requisite product as specified on the Site will be delivered to you. For avoidance of doubt, we make no guarantees regarding the availability, accuracy, or completeness of the products and we reserve the right to modify or discontinue it at any time without notice.

WE HAVE THE RIGHT TO DISABLE ANY USER NAME, PASSWORD OR OTHER IDENTIFIER, WHETHER CHOSEN BY YOU OR PROVIDED BY US, AT ANY TIME IN OUR SOLE DISCRETION FOR ANY OR NO REASON, INCLUDING IF, IN OUR OPINION, YOU HAVE VIOLATED ANY PROVISION OF THESE TERMS OF USE OR THE TERMS OF ANY OTHER COMMERCIAL AGREEMENT YOU HAVE ENTERED INTO WITH COMPANY. YOU MAY NOT CREATE ANOTHER ACCOUNT IF WE HAVE DISABLED YOUR ACCOUNT UNLESS YOU OBTAIN OUR PRIOR WRITTEN CONSENT.

OWNERSHIP

All rights, title, and interest in and to the Platform, including but not limited to all copyrights, trademarks, HPES™ methodology, educational content, research data, and proprietary leadership principles, will remain with and belong exclusively to us. You agree not to reproduce, distribute, sell, license, or exploit any content, tools, or information from the Platform without our express written permission. You acknowledge that the Platform and its contents are intended for personal development and organizational improvement and not for commercial resale or redistribution.

You agree not to access Platform by any means other than through the interface that is provided by Platform to access the same. You may not use any “page-scrape,” “deep-link,” “spider,” or “robot or other automatic program, device, algorithm or methodology, or any similar manual process, to access, copy, acquire, or monitor any portion of Platform, or in any way reproduce or circumvent the presentation or navigational structure of Platform, to obtain or attempt to obtain any content or other information through any means not made generally available through Platform. Platform reserves the right to take any lawful measures to prevent any such activity. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Platform on or through the Site or any service offered on or through Platform. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.

License Restrictions. Information, content or material that may be available for downloading through the Site or third-party websites or applications (“Content”) is the copyrighted work of the Company, its licensors, and/or such other respective third-party providers. Use of the Content is governed by these Terms of Use and such license and/or other terms as may be required directly of you by the third-party providers. Unauthorized reproduction or distribution of the Content is expressly prohibited by law, and may result in civil and criminal penalties. Violators may be prosecuted.

INTELLECTUAL PROPERTY RIGHTS

The Platform and its entire contents, features and functionality, all rights, titles, and interest in and to the Platform (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement, copyright, thereof), are owned by the Company, its affiliates, its licensors and are protected by the applicable international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

You acknowledge, however, that the intellectual property rights and data underlying the Content, including but not limited to, any processes, methods, tools, templates, designs, known-how, data, information, copyrights, patents, trademarks, trade secrets, and other associated intellectual property, including any improvements, inventions or derivate works made with respect to the foregoing, remain the sole property of Company (“Intellectual Property”).

By posting your information and other content (“User Content”) on or through Platform, you grant the Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform User Content in connection with the Site and Platform. The Company may remove or disable any User Content at any time for any reason, or for no reason at all.

These Terms of Use permit you to use the Platform for your individual, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Platform. You must not: (i) modify copies of any materials from the Platform; (ii) delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Platform; or (iii) access or use for any commercial purposes any part of the Platform or any services or materials available through the Platform. For purposes of clarity, prohibited commercial uses shall not include satisfying the terms of any commercial agreement entered into between you and the Company.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Platform in breach of the Terms of Use, your right to use the Platform will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Platform or any content on the Platform is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Platform not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

TRADEMARKS

The Company name, Company logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on the Platform are the trademarks of their respective owners.

RESTRICTIONS ON THE USE OF THE SITE

By using the Platform, you specifically agree not to be involved in any activity or transmit any information that, in our sole discretion:

Is illegal, or violates any federal, state, or local law or regulation;

Advocates illegal activity or discusses illegal activities with the intent to commit them;

Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;

Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;

Interferes with any other party’s use and enjoyment of the Site;

Attempts to impersonate another person or entity;

Is of a commercial nature in a way that violates these Terms of Use, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;

Falsely states, misrepresents, or conceals your affiliation with another person or entity;

Accesses or uses the Platform account of a customer without such customer’s permission;

Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;

Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site;

“Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;

Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;

Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms of Use or by law, unless and then only to the extent permitted by applicable law without our consent;

Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Site;

Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;

Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Site;

Downloads, distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site, by any means except as provided for in these Terms of Use or with the prior written consent of the Platform; or

Attempts to do any of the foregoing.

Any violation of this Clause may, in our sole discretion, result in termination of your use of and access to the Site and Platform effective immediately.

You can set your browser to refuse all or some browser cookies or to alert you when websites set or access cookies. If you disable or refuse cookies, please note that some parts of this website may become inaccessible or not function properly.

CONFIDENTIALITY

Our “Confidential Information” means (a) any written information, materials and other documents supplied by us related to the Platform which we do not generally disclose publicly, (b) the Platform services themselves, excluding any data you upload to the Platform for processing;  and (c) any other of our information that we may disclose in writing or orally and is designated as confidential or proprietary at the time of disclosure, or that due to the nature of the information a reasonable person would clearly understand it to be confidential information; and (d) any amendment to the terms and conditions of these Terms of Use between you and us.

Confidential Information shall not include any information that: (i) was or becomes generally known to the public through no fault or breach of these Terms of Use; (ii) was rightfully in your possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by you without use of our Confidential Information; or (iv) was rightfully obtained by you from a third party not under a duty of confidentiality and without restriction on use or disclosure.

Restricted Use and Nondisclosure. During and after the term, with respect to our Confidential Information you will: (a) use our Confidential Information solely for the purpose for which we provided it; (b) not disclose such Confidential Information to a third party; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that you protect your own Confidential Information of a similar nature.

Required Disclosure. If you are required by law to disclose our Confidential Information, you will give us prompt written notice before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist us to obtain where reasonably available an order protecting our Confidential Information from public disclosure.

Ownership. Notwithstanding any other provision of these Terms of Use, you acknowledge that, as between you and us, all our Confidential Information you receive from us, including all copies thereof in your possession or control, in any media, is proprietary to and exclusively owned by us. Nothing in these Terms of Use grants you any right, title or interest in or to any of our Confidential Information, except as provided in these Terms of Use. Any incorporation of our Confidential Information into any of your own materials will not render our Confidential Information non-confidential.

GENERAL DATA PROTECTION REGULATION (‘GDPR’)

Both parties will comply with all applicable requirements of the Data Protection Legislation. (‘GDPR’).

The parties acknowledge that for the purposes of the GDPR, you are the data controller and the Company is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in the GDPR Legislation).

You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company.

The rights of data subjects

Chapter III of the EU Data Protection Regulation (GDPR) provides for extensive rights for data subjects, which we will explain to you below with regard to the processing of your personal data:

The right to be informed

This specification applies in particular to the following data processing details:

The purpose of the processing operation
Categories of data
If necessary, recipient or categories of recipients
If necessary, the planned storage duration or the criteria for determining this duration

Information on the respective right to correction, deletion, restriction or objection
Existence of a right of appeal to a supervisory authority
If necessary, origin of the data (if not collected from you)
If necessary, existence of automated decision making including profiling, and including meaningful information about the logic involved, the scope and the expected effects
If necessary, (planned) transfer to a third country or international organization

The right of rectification

If necessary, we will correct faulty data immediately if you inform us about the circumstance accordingly.

The right to deletion

If the processing is no longer necessary and one of the following conditions is fulfilled:

Expiry of the purpose of processing
Withdrawal of your consent and the absence of any other legal basis for processing
Opposition to processing without an important reason to the contrary
Illegal processing
Required to fulfil a legal obligation
Data collection in accordance with Art. 8 para. 1 GDPR

As part of the deletion request, we may pass on your request to those third parties to whom your data was previously transferred.

The right to restriction of processing

Provided one of the following conditions is met:

You dispute the accuracy of your data (restriction may be made on our site for the duration of the verification)
In the event of unlawful processing and provided that the data is not to be deleted, deletion shall be replaced by restriction of processing
If the processing purposes expire, at the same time you need your data to assert, exercise or defend legal claims
After your objection pursuant to Art. 21 para. 1 GDPR and for the duration of the examination, whether our justified reasons outweigh yours.

The right to data portability

As long as it is technically possible and the rights and freedoms of other persons are not affected, we will – at your request – transfer your data to another recipient (data controller).

Right to object

If we collect personal data from you or have it collected and process it (on the basis of Art. 6 Para. 1(e) or (f) or Art. 9 Para. 2(a) GDPR), you have the right to object to data processing (including profiling) at any time (with effect for the future). In exceptional cases, the objection may be invalid, e.g. if we can prove compelling legitimate interests for processing that outweigh your interests, or processing serves to assert, exercise or defend legal claims. If we process your personal data for direct marketing purposes, you have the right to object to such processing at any time. This also applies to any profiling connected with such direct advertising. You also have the right to object to the processing of the data we hold about you, which is carried out by us for scientific or historical research purposes or for statistical purposes in accordance with Art. 89 para. 1 GDPR unless such processing is necessary to fulfil a task in the public interest.

Automated individual decision-making including profiling

If we collect personal data from you or have it collected and process it, you have the right not to be subject to decision based exclusively on automated processing – including profiling – which has a legal effect on you or significantly impairs you in a similar manner. Exceptions to this requirement apply if the decision to conclude or fulfil a contract between you and us is necessary or if you have expressly consented to the processing. In any event, we will take reasonable measures to protect your rights and freedoms and your legitimate interests, including at least the right on our part to obtain the intervention of a person to express our position and to challenge the decision.

Right to withdraw consent under the data protection laws

You have the right to revoke your consent to the processing of personal data at any time.

Information on data security

We secure your personal data processed by us against loss, destruction, access, modification or distribution of your data by unauthorised persons by appropriate technical and organisational measures. However, despite regular checks, complete protection against all risks is not possible.

Legal basis for processing

We process personal data according to the specifications of the GDPR, depending on the type and purpose of processing, as follows:

Where allowed by law	Specification of the GDPR
Informed consent	Art. 6 para. 1(a)
In performance of a contract	Art. 6 para. 1(b)
Implementation of pre-contractual measures	Art. 6 para. 1(b)
Fulfilment of legal obligations	Art. 6 para. 1(c)
Protection of vital interests	Art. 6 para. 1(d)
Safeguarding our legitimate interest	Art. 6 para. 1(f)

Our legitimate interest

Our legitimate interest, as defined in Article 6 para. 1(f) GDPR, is based on the performance of our business activities to maintain our operability and to safeguard the employment of our employees.

General deadlines for data deletion

After elimination of the storage purpose, the retention periods are generally at least six or ten years. As a rule, the deletion of data generally takes place without delay in accordance with our deletion plan, insofar as it does not preclude any obligation to retain data, the need to fulfil a contract or a legitimate interest.

Deletion or blocking of personal data

We store your personal data only for the period necessary to fulfill the intended purpose. After elimination of the purpose and after expiration of any existing retention periods, your data will be deleted immediately. If deletion is not possible, the data will be blocked instead.

11. USER-PROVIDED MATERIALS

11.1 The Platform may allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User-Provided Materials“) on or through the Platform.  All User-Provided Materials must comply with the Content Standards set forth below.

11.2 Any User-Provided Materials you post to the Platform will be considered non-confidential and non-proprietary. By providing any User-Provided Materials on the Platform, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute, promote, broadcast, and otherwise disclose to third parties any such material for any purpose in any and all media or distribution methods now known or later developed.

11.3 To the extent you appear in, create, upload, post, or send User-Provided Materials, you hereby grant Company and our respective licensees, successors and assigns, the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice, including in connection with commercial or sponsored content. You acknowledge that you will not be entitled to any compensation from Company, our affiliates, or our business partners if your name, likeness, or voice is conveyed through the Platform, either on the Platform or on one of our business partner’s platforms.

11.4 You represent and warrant that: (i) you own or control all rights in and to the User-Provided Materials and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns; and (ii) all of your User-Provided Materials do and will comply with these Terms of Use.

11.5 You understand and acknowledge that you are responsible for any User-Provided Materials you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.

11.6 We are not responsible, or liable to any third party, for the content or accuracy of any User-Provided Materials posted by you or any other user of the Platform.

12.  LINKS TO THIRD-PARTY WEBSITES

12.1 Links from or to websites outside our website are meant for convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We do not review, endorse, approve or control, and are not responsible for any sites or resources linked from or to our website, the content of those sites, the third parties named therein, or their products and services.

12.2 If you decide to access any of the third-party websites linked to the Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

12.3 We may share your information with trusted service providers who assist us in operating our Site, conducting our business, or servicing you. These service providers may include website hosting providers, payment processors, analytics providers, and other similar entities. They are contractually obligated to use your information only for the purposes specified by us and in compliance with applicable data protection laws.

12.4 Your information may be shared internally within our company for legitimate business purposes, such as improving our services, conducting research and analysis, and ensuring the security of our systems.

12.5 We may collaborate with marketing partners to promote our products or services. In such cases, we may share your information with these partners to facilitate marketing activities, but only if you have provided your consent or if permitted by law. Furthermore, we may disclose your information to comply with legal obligations or respond to lawful requests from government authorities. We may also disclose your information to protect our rights, property, or safety, or the rights, property, or safety of others. We share your information with third parties under the following conditions:

User Consent: Your explicit consent will be obtained before sharing your information with any third party for marketing purposes or any other purposes not covered by this policy.
Service Provision: Your information may be shared with third parties to provide you with requested services, fulfill orders, process payments, or perform other functions necessary to deliver our products or services to you.

12.6 Specifically, regarding contact form data, we assure you that your information will only be shared with our internal teams and trusted service providers who assist us in managing and responding to inquiries submitted through our contact forms. We use company-controlled software such as Notion, HubSpot, and Microsoft email software for managing and processing contact form submissions. No external third-party companies have access to this data, ensuring your privacy and security.

12.7 By using our Site and providing your information, you consent to the collection, use, and sharing of your information as described in this Terms of Use. If you have any concerns or questions about our data sharing practices, please contact us using the information provided in the “Contact Us” section of this Terms of Use.

13. LIMITATION ON LIABILITY

13.1 LIABILITY CAP. WITH THE EXCEPTION OF ANY INDEMNIFICATION CLAIM PERMITTED UNDER THESE TERMS OF USE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY YOU OVER A ONE MONTH PERIOD PRECEDING THE CLAIM, FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.

13.2 DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.

14. INDEMNIFICATION

14.1 You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors, its service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Platform, including, but not limited to, your User Content, any use of the Platform’s content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Platform.

15. GOVERNING LAW AND JURISDICTION

These Terms of Use SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF AUSTRALIA.

16. FORCE MAJEURE

The Company will not be liable to you for any delay or failure of services to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of the Company. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity, pandemic, epidemic, quarantines, lockdowns, or delays in providing required resources or support or performing any other requirements hereunder.

17. WAIVER AND SEVERABILITY

17.1 No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

17.2 If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

18. ENTIRE AGREEMENT

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and the Company, with respect to the Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platform.

19. DISCLAIMER OF WARRANTIES

19.1 You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our platform for any reconstruction of any lost data.

19.2 WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

19.3 YOUR USE OF THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM (INCLUDING, BUT NOT LIMITED TO, THE DOCUMENTATION) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

19.4 THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

19.5 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

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