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Information ordered
by Subscriber from Benchmarking Success
Pty Ltd (BMS) pursuant to this Agreement
will be at the prices identified in the
BMS website
www.benchmarkingsuccess.com from
time to time. Subscriber authorizes BMS
to charge Subscriber’s credit card
number, details of which are provided
below, with the total price indicated
for Information ordered by Subscriber.
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Where the Subscriber
elects to provide comparative
information to BMS such information
becomes the property of BMS and the
Subscriber warrants that such
Information may be used by BMS in the
ongoing provision of services to BMS
clients. BMS also warrants that
Information provided by Subscribers will
be used as part of an aggregated
database and for purpose of providing
comparative Information where the
individual Subscriber information is not
identifiable as related to the
Subscriber.
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Information is
licensed to Subscriber and BMS retains
all ownership rights in the Information
and Subscriber obtains only such rights
as this Agreement explicitly grants.
This Agreement grants Subscriber a
non-exclusive, non-transferable license
to use the Information in its business
subject to the limitations contained
herein.
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Subscriber agrees
that the Information will not be
reproduced, revealed or made available
to anyone else, it being understood that
the Information is licensed for
Subscriber’s internal use only. All
Information shall be held in strict
confidence and shall not be revealed or
disclosed to any third party. Subscriber
agrees to indemnify, defend and hold
harmless BMS from any claim or cause of
action against BMS arising out of or
relating to use of the Information by
individuals or entities which have not
been authorized by this Agreement to
have access to and/or use the
Information.
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Subscriber
acknowledges that BMS does not warrant
or guarantee the timeliness, currentness,
accuracy, completeness, merchantability
or fitness for a particular purpose of
the information. Subscriber also
acknowledges that every business
decision involves the assumption of a
risk and that BMS, in furnishing the
information to subscriber, does not and
will not underwrite that risk, in any
manner whatsoever. Subscriber therefore
agrees that BMS will not be liable for
any loss, damage or injury caused in
whole or in part by BMS's negligence in
procuring, compiling, collecting,
interpreting, reporting, communicating
or delivering the information.
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Subscriber agrees
that BMS will never be liable for
consequential damages, even if advised
of their possibility. Subscriber also
agrees that BMS's liability of any and
all losses, damages or injuries which
subscriber may suffer or incur arising
out of any acts or omissions of BMS in
connection with anything to be done or
furnished hereunder, regardless of the
cause of the loss, damage or injury and
regardless of the nature of the legal
right claimed to have been violated,
shall never exceed the value of the
subscription service purchased by the
subscriber and subscriber covenants and
promises that it will not sue BMS for a
greater amount.
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Subscriber
acknowledges and agrees that the
copyright to the Information is and
shall remain with BMS. Subscriber
further acknowledges that the
Information, regardless of form or
format, is proprietary to BMS and
comprises: (a) works of original
authorship, including compiled
information containing BMS's selection,
arrangement and coordination and
expression of such information or
pre-existing material it has created,
gathered or assembled; (b) confidential
or trade secret information; and (c)
information that has been created,
developed and maintained by BMS at great
expense of time and money such that
misappropriation or unauthorized use by
others for commercial gain would
unfairly and irreparably harm BMS.
Subscriber shall not commit or permit
any act or omission by its agents,
employees or any third party that would
impair BMS's proprietary and
intellectual property rights in the
Information. Subscriber agrees to notify
BMS immediately upon obtaining any
information regarding a threatened or
actual infringement of BMS's rights.
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These Terms of
Agreement constitute the entire
agreement between Subscriber and BMS
concerning the subject matter herein and
shall be governed by and construed in
accordance with the laws of the State of
New South Wales. These Terms of
Agreement shall be binding upon and
shall inure to the benefit of the
parties, their successors and permitted
assigns.
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Subscriber
acknowledges that all Information
furnished to Subscriber by BMS pursuant
to this Agreement is provided solely by
BMS.
