9 May, 2017

Terms of Service

Here they are, the inevitable legal bits. Our terms of service relate to the provision of online software and related web content and services (such as forums and learning modules). There’s also a Privacy Statement here you should read.

If you are engaging us as consultants or subscribing to an enterprise level software as a service offering, these are governed by separate contracts.

TERMINOLOGY

When we use “we”, “us”, “our” and the like we are referring to:

  • CapabilityBuilder Pty Ltd (ACN 606 854 219), a privately held proprietary company limited by shares, incorporated in Australia in accordance with the Corporations Act 2001 and registered in Victoria, with its normal place of business at level 4, 520 Bourke Street, Melbourne, Victoria 3000, Australia;
  • CapabilityBuilder Pty Ltd’s employees and agents; and,
  • Where relevant our business partners, such as those who provide development services (and may retain rights in some of our source code).

A “user” or “subscriber” is anyone who:

  • Accesses any website or webpage we maintain as part of our service/s (i.e. not our home page, blog or other pages and sites intended for public consumption)
  • Accesses, copies or transmits any document accessible via any of these sites and pages
  • Accesses any third party website or software via any of these websites or pages where these are provided for the purpose of delivering our services

“Service” and “services” means the suite of products we make available to users via the internet, including our software-as-a-service offerings (our tools), the community of practice website (our platform), person-to-person support and advice offered via the platform, and various videos, documents, forms and e-learning modules provided via the platform.

“In writing” means:

  • A handwritten, typed or printed letter or notice delivered to our registered office: CapabilityBuilder Pty Ltd c/- Teamsquare, Level 2, 520 Bourke Street, Melbourne VIC 3000, Australia,
  • An email delivered to our customer support email address: support@capabilitybuilder.com; or,
  • Submission of required information via a web form where we provide one for any specific purpose.

“Commercial terms” means the period of time permitted for the debtor to settle an account or invoice. The commercial terms are always stated on the invoice or other notice you receive requesting payment. Our commercial terms are usually 30 calendar days from the date of issue of an account or invoice, but we may vary these at our discretion (but not of course after we issue the account or invoice to which they apply).

USING OUR SERVICES

Whether or not you have been asked explicitly to agree to them, using any of our services implies acceptance of these terms of service.

Only authorised users may access our services. Where access to a site, page or app requires a user name and password to access, only the person to whom those credentials belong may use them. Sharing your credentials with someone and allowing them to access the service using them violates these terms of service. We reserve the right to suspend or cancel any account used my multiple people, and if necessary take legal action to recover any damages arising from sharing of credentials.

Authorised users MAY:

  1. Access any of the services to which they have subscribed (including paid services for which they have paid, or payment for which is not in default of the commercial terms);
  2. Download and store documents within the Community of Practice provided for the purpose of user support and education;
  3. Create, export, save, and store documents (such as role profiles and coaching plans) created by them using our services, or which have been shared with them by other users;
  4. Share products from or created using our services with non-users to the extent required to make reasonable use of them. For example, team leaders creating role profiles may share copies of these profiles with team members for the purpose of goal setting, evaluating performance, creating development plans, coaching and other fair uses.
  5. Engage or choose not to engage with other users in discussion forums within the Community of Practice;
  6. Undertake self-paced training using courses within the Community of Practice.

Users MUST:

  1. Provide us with complete, accurate and truthful information as and when required for us to establish user accounts and provide our services to you;
  2. Take all reasonable steps to protect themselves and their employers from the inherent risks of internet use, including appropriate virus and intrusion detection solutions;
  3. Ensure the security of their log-in credentials and take steps to ensure they are not easily accessed or guessed by unauthorised persons;
  4. Evaluate all services thoroughly during the free trials provided by us to satisfy themselves as to the quality and suitability of these services before choosing to subscribe to them.

Users MAY NOT:

  1. Access or attempt to access, copy, transmit, alter or otherwise interfere with any computer code underlying any of our services;
  2. Replicate, reproduce or otherwise distribute our services or products created from our services with the intention of creating a false impression that the user is the sole author or creator of those products, providing our service to non-users, or inducing or supporting others to provide our service non-users;
  3. Engage in conduct, especially within the forums, reasonably likely to defame, belittle, embarrass, harass, threaten or in any other way harm any other person;
  4. Give any unauthorised person access to our services, including by sharing log-in credentials;
  5. Deliberately or recklessly do anything likely to expose our systems or users to harm, including by introducing any virus, spyware, malware or other dangerous software or code into our system.

OUR SERVICE PROMISE

We guarantee that our web pages and web services will be available to you 99.9% of the time (based on Microsoft Azure’s promise to us). “Available” means that you can access web pages, read and write content, access web services (such as printer queues), and successfully log on.

We will inform you via email at least 24 hours before any scheduled service outage or down time.

We will use our best endeavours to restore full availability of our services within 24 hours of any fault detected by us or reported by you in writing.

YOUR RIGHTS

Your rights as a customer are defined by the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010).

Note in particular your right to services that are:

  • Provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage
  • Fit for the purpose or give the results that you and the business had agreed to
  • Delivered within a reasonable time when there is no agreed end date.

Since the nature of our services are rarely if ever mission critical, we do not offer compensation for non-availability in most cases. However, if users are unable to access core functions for more than 24 hours we may, at our discretion provide compensation. Compensation will be exclusively in the form of a pro-rata discount on the next fee to be paid by you to us.

However in cases where some defect or failure in our service causes damage or loss you may be entitled to compensation for your losses, but not if those if those losses occur because of some misuse or violation of the terms of service, or arise solely from your use of the products derived from our service after they leave our control.

You may also be entitled to cancel your subscription and be refunded what you have paid during a period of defect or non-availability if we cannot solve a problem in a reasonable time.

INTELLECTUAL PROPERTY

We assert a common law trade mark on the name “CapabilityBuilder”.

All content created by us, including any downloadable resources and outputs from our software as a service tools, is our intellectual property. We retain our rights, including copyrights, in it. We also retain copyright in all software code, including the source code for our websites, and all code (including source and machine code) for our software as a service tools (excluding those code elements belonging to our development partner BlueChilli Technology Pty Ltd, which we use under licence and which remains the exclusive property of BlueChilli).

You may not copy, transmit, alter or share, or cause or allow to be copied, transmitted, altered or shared, any of our intellectual property, except to the extent that we explicitly permit you to do so or to the extent required for you to use our service (including, for example, making copies of role profiles you have created and sharing these with colleagues in order to utilise them for their obvious and intended purpose). This particularly means that you may not alter, copy or distribute our property so that it can be used by people who would otherwise be obliged to subscribe to our service to use it, or which will allow other products to be created based on our work.

Note that the restrictions on copying and distributing content described above extend to any documents such as whitepapers and guides provided for download within the subscriber-only websites we provide to registered users. Some documents may from time to time be provided for download on public web pages we maintain. These are intended for general distribution and may be copied and disseminated freely, subject to general application of copyright law, including that no alteration is made to them and that proper attribution is provided when anyone quotes from them.

Provided that you respect the limits imposed by these terms of service, your licence to store, copy and use our intellectual property will endure after you cease being a subscriber, user or customer of CapabilityBuilder’s services, to extent that you are continuing to use documents and other outputs created while you were a subscriber or customer.

Any content you create within or using our service (including in forums, comment spaces, and online tools) remains your intellectual property (or the property of your employer where relevant employment contracts or laws apply). We will not copy, alter, transmit or use your content without your permission.

We may from time to time invite you to share your content with other users for the purposes of creating a robust community of practice and improving everyone’s ability to manage people well and create better working experiences. If you choose to share content, you grant a perpetual, non-exclusive licence to other users to copy, alter and use your content within their own content and outputs. This licence does not require attribution (as this will be too hard to enforce), but is limited to creating user-generated content within our platform and tools. You may not copy or extract content for use in other contexts, and other users may not copy and extract your content for use in other contexts. The licence thus granted extends to all consequential use of outputs from our platform and tools, but no further. For example, a user may copy, paste and alter shared content to create a role profile. They may store, copy, disseminate and use the profile thus created, and may use some of this content in creating learning plans, position descriptions and employment advertisements based on the role profile (these are examples of how users will routinely use role profiles). They may not use the same content to create blogs, text books, memes or other unrelated products.

UPDATING THIS AGREEMENT

We reserve the right to alter these terms of service at any time, as required to ensure best practice and legal compliance.

We will provide written notice via email to subscribers of any change. However it is advisable to review these terms of service regularly to ensure you understand your current rights and responsibilities.

No changes to these terms of service will alter your rights established by consumer and intellectual property law, or any explicit or implied contract created by your acceptance of these terms at the time you subscribe.

LEGAL REMEDIES AND OUR LIABILITIES

In accepting these terms of service you agree to provide us with prompt written notification of any problem, defect or breach. You also agree to negotiate in good faith concerning rectification of any defect, fault or problem (including the time it is reasonable for us to take in resolving a problem, any compensation you believe you are owed, and your right to terminate your subscription as a result of the exercise of your consumer rights).

In accepting your registration as a user of our services, and providing those services to you, we agree to communicate with you concerning any known issues or problems, and any planned service changes or interruptions, in a prompt and full fashion. We also agree to negotiate in good faith concerning the time to be taken to provide solutions to problems, rectifications proposed for problems, and compensation or other consideration to be provided to you (including accepting your decision to terminate your subscription as a result of the exercise of your consumer rights).

This document, and any implied contract arising from your acceptance of them and our decision to provide you with services as a result of your acceptance (with our without the obligation on you to pay a fee), shall be construed in accordance with and shall be governed by the laws in force in the State of Victoria.

Each of the parties (you and us) irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the State of Victoria or the Commonwealth of Australia and any courts of appeal from these courts. In other words, if we sue you or you sue us over any dispute arising from or connected with the interpretation or application of these terms of service, or the provision of services by us to you arising from your acceptance of these terms, that suit must be brought in the appropriate, competent court in Victoria or a federal court in Australia.