Terms of Service

 

1. Acceptance of the Terms

Kearney Group, which includes PJ Kearney & Co Pty Ltd and Kearney Financial Planning Pty Ltd  ("Kearney Group", “us”, “we”) provides the Service (defined in clause 3 below) to you (the user of the Service) subject to the following Terms of Service ("TOS").  The TOS are important as they form a binding contractual agreement between you and us.  For that reason, you should ensure that you read them carefully and contact us with any questions before you use the Service.  You can contact us using the details set out in clause 32 below. 

By accessing and using the Service, you acknowledge and agree that you have had sufficient opportunity to read and understand the TOS and agree to be bound by them.  In addition, by using the Service, you agree to be bound by any policies (including but not limited to our Privacy Policy, http://www.kearneygroup.com.au/privacy/) guidelines, rules, notices or disclaimers applicable to the Service, which may be posted and modified from time to time.  

If you do not agree to the TOS, you are not permitted to use the Service.

2. Changes to the TOS

We reserve the right, at our sole discretion, to modify the TOS and the Service at any time, which includes (without limitation) the right to suspend or terminate the Service. Where applicable, changes to the TOS will be communicated to you any time you access the Service following a change in the TOS. Additionally, you can review the most current version of the TOS at any time at: www.kearneygroup.com.au/mykearneyonline/terms/. Your continued use of the Service following any changes made to the TOS will be deemed to constitute your acceptance of those changes and your agreement to be bound by them.

3. Description of the MyKearney Online Service

Kearney Group provides users with access to a personalised web “portal”, known as “MyKearney Online” or (“MKO” (“the Portal”),  containing a rich collection of resources, including without limitation various personalised documents developed for users through their engagement of other Kearney Group services, each users’ personal client information as stored by the Kearney Group, personalised listings of upcoming meetings with Kearney Group representatives, and news and information about Kearney Group (“the Service”). You also understand and agree that the Service may include advertisements and/or promotional information about other Kearney Group services and that these are necessary for Kearney Group to provide the Service. You also understand and agree that:

  1. the Service may include certain communications from Kearney Group, such as service announcements and administrative messages, and that these communications are considered part of MKO membership.  By using the Service you irrevocably consent to receiving such communications and, for a long as your MKO account remains active, you will not be able to opt out of receiving them;
  2. the Service is provided “as is” and “as available”   and that Kearney Group assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications, user information or personalisation settings. You understand and agree that the Kearney Group has sole discretion to determine any and all materials which are entitled to appear in each user’s Portal;
  3. the technical processing and transmission of the Service, including your any information in the Portal, may involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

4. Cost of the MyKearney Online Service

  1. The Service is provided to you without charge ($0 AUD) as a supplement to other services you have already procured from the Kearney Group. As such, Kearney Group shall designate those to whom the Service is provided and may include or exclude individuals and/or businesses at their sole discretion;
  2. Kearney Group retains the right to alter the fee for access to the Service, or a part of the Service (either now available or developed and released hereafter) at any time. Any such changes to the cost of access to the Service, in whole or in part, shall be communicated to you ahead of time and will require you to “opt in”.
  3. “Opting in” in this respect, refers to a process that enables an active user to expressly consent to or refuse the continued use of their MKO account after the imposition of a fee change. You understand and agree that either a failure to respond to or an explicit refusal of the fee change will result in the termination of your MKO account and deletion of all materials contained within.
  4. Kearney Group reserves the right to charge a fee for the reactivation of an MKO account that has been terminated or suspended as set out in clause 18 of the TOS.
  5. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or mobile usage/data charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.

5. Your Registration Obligations

In consideration of your use of the Service, you represent and warrant to us that you are of legal age and have the capacity to form a binding contract and are not a person barred from receiving the Service under the laws of Australia or other applicable jurisdiction. You also agree to: (a) where requested, provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Kearney Group has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Kearney Group has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

You agree to fully indemnify us, our subsidiaries and affiliates, and our directors, officers, employees, contractors and agents (“Representatives”) and keep us fully indemnified from and against any claims, losses, damages, costs, expenses, liabilities or proceedings, arising from or in connection with any breach of your warranties or obligations set out in this clause.

6. Kearney Group Privacy Policy

Your privacy is very important to us which is why we have created a separate Privacy Policy in order to explain in detail how we collect manage, process, secure and store your private information, Registration Data and certain other information about you.. For more information, see the full Kearney Group Privacy Policy at http://www.kearneygroup.com.au/privacy/. You understand that through your use of the Service you agree to be bound by the Privacy Policy and consent to the collection and use (as set forth in the applicable privacy policy) of this information, including the transfer of this information to Australia  and/or other countries for storage, processing and use by the Kearney Group.

7. Your Login Credentials and Security

You will receive your MKO account login credentials (including a username and password) upon completion of the Service's registration process. You are responsible for maintaining the confidentiality of these credentials and are fully responsible for all activities that occur under your MKO account. You agree to: (a) immediately notify Kearney Group if you suspect any unauthorised use of your password or username or any other breach of security; (b) ensure that you log out from your MKO account at the end of each session; and (c) never share your password or other account login information with any other individual, or knowingly allow another individual access to your MKO account. Kearney Group cannot and will not be liable for any loss or damage arising from your failure to comply with this clause 7.

8. Conduct Requirements of Members

You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Kearney Group, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Portal and all revisions, additions, and modifications that you make to any Content previously added to the Portal by Kearney Group or any other user. Under no circumstances will Kearney Group be liable in any way for any user uploaded Content, including, but not limited to, any errors or omissions in any user uploaded Content, or any loss or damage of any kind incurred as a result of the use or inability to use any user uploaded Content which is posted, emailed, transmitted or otherwise made available via the Service.

You agree to not use the Service to, intentionally or unintentionally:

  1. upload, post, email, transmit, or otherwise make available on the Portal any Content (whether about yourself or others):
    1. that is or could reasonably be considered to be unlawful, fraudulent, offensive, indecent, harmful, threatening, intimidating, abusive, harassing, tortious, defamatory, disparaging, vulgar, obscene, pornographic, invasive of another(i) that is or could reasonably be considered to be unlawful, fraudulent, offensive, indecent, harmful, threatening, intimidating, abusive, harassing, tortious, defamatory, disparaging, vulgar, obscene, pornographic, invasive of another'
    2. that is not required for the fulfillment of other Kearney Group services; that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
    3. that infringes any patent, trademark, trade secret, copyright or other intellectual property rights of any party;
    4. that constitutes or could reasonably be considered to constitute unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes,"
    5. that would cause you or us to breach any law, regulation, code or other legal obligation;
    6. that would bring us or the Service into disrepute;
  2. harm minors in any way;
  3. impersonate any person or entity, including, but not limited to, a Kearney Group Representative, or falsely state or otherwise misrepresent your affiliation with the Kearney Group or any other person or entity;
  4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Portal, or attempt to access Content which you would otherwise not be able to access;
  5. access (or attempt to access) any Content available through the Portal by any means other than through the means we provide, or access (or attempt to access) any of the information through any automated, unethical or unconventional means;
  6. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including using any device, software or routine to bypass our robot exclusion headers;
  7. violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the Australian Securities and Investments Commission, any rules of any national or other securities exchange, including, without limitation, the Australian Securities Exchange, and any regulations having the force of law;
  8. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the Australian government as a foreign terrorist organization or group;
  9. "stalk" or otherwise harass another person; and/or
  10. collect or store personal data about other users in connection with the prohibited conduct and activities set out above.

You acknowledge that Kearney Group may or may not pre-screen Content, but that Kearney Group and its Representatives shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Service. Without limiting the foregoing, Kearney Group and its Representatives shall have the right to remove any Content that violates the TOS or is otherwise objectionable.  If you post or transmit Content which we choose to remove, you hereby consent to such removal and consent to waive any claim against us for such removal.   

You acknowledge, consent and agree that Kearney Group may access, preserve and disclose your account information and Content if required to do so by law or in good faith believes that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Kearney Group, its users and the public.

You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Kearney Group and/or other providers who provide Content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorised reproduction, publication, further distribution or public exhibition of the materials provided on the Portal, in whole or in part, is strictly prohibited without express and written consent of the Kearney Group.

9. Archival and Backup of Content

Kearney Group provides the Service as a convenient means for users to access their relevant documentation in an electronic format, and as an efficient mechanism for communications and electronic document exchanges with Kearney Group employees.  While the Portal, by its nature, will act as a repository of information, you acknowledge and agree to take full responsibility for the archival and backup of all Content on your Portal.

In the event of a loss of any Content on your Portal, Kearney Group will not be liable for any harm or injury incurred as a result of the failure to archive the Content. This includes, but is not limited to: (a) any harm or injury, including financial loss, incurred as a result of the loss of access to the Content, either permanently or temporarily: (b) any costs associated with the replacement or redevelopment of any Content lost; and/or (c) any fines, punishment and/or penalties incurred as a result of a failure to maintain a copy of the lost Content.

10. Interstate and International Data Transfer and Storage

By agreeing to the TOS, you acknowledge that in using the Service to send electronic communications (including but not limited to email, search queries, sending messages to our Representatives, uploading files and documents, electronically signing documents, and other Internet activities), you will be causing communications to be sent through and/or files to be stored on our computer networks, portions of which are located in Australia (Sydney, New South Wales; Melbourne, Victoria; Brisbane, Queensland) and the United States (Texas) and other international locations. As a result of Kearney Group’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate or international communications regardless of where you are physically located at the time of transmission. Accordingly, you agree and acknowledge that: (a) use of the Service results in interstate and/or international data transmissions and storage and you consent to such transmission and storage; and (b) the information transmitted and stored in these other jurisdictions will be subject to the local laws and regulations of that jurisdiction. You agree that the Kearney Group is not responsible for any impact that the interstate or international transmission or storage of information may or may not have on you.

11. Special Admonitions for International Use and Export and Import Compliance

Recognising the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the Portal and transfer, posting and uploading of software, technology, and other technical data via the Service may be subject to the export and import laws of Australia and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, you represent and warrant that you: (a) are not a prohibited party identified on any government export exclusion lists or a member of a government of any other export-prohibited countries as identified in applicable export and import laws and regulations; (b) will not transfer software, technology, and other technical data via the Portal to export-prohibited parties or countries; (c) will not use the Portal for military, nuclear, missile, chemical or biological weaponry end uses; and (d) will not transfer, upload, or post via the Portal any software, technology or other technical data in violation of any applicable export or import laws.

12. Content You Submit for Inclusion on the Service

Kearney Group does not claim ownership of Content you submit or make available for inclusion on the Portal. However, with respect to Content you submit or make available for inclusion on the Portal, you grant Kearney Group a perpetual, royalty-free, non-exclusive, irrevocable, worldwide and transferable right and license to use your Content in any way and for any purpose (including, without limitation, distributing reproducing, modifying, adapting, transmitting, storing, performing and displaying such Content (in whole or in part)) and to incorporate such Content into other works in any format or medium now known or later developed, aimed at the fulfillment of other Kearney Group services to you and your associates, subject always to our obligations under our Privacy Policy.

You consent to any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any Content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.

You represent and warrant to us that you have all necessary rights to grant the licences and consents set out in this clause.

The licences in this clause survive any termination of the Service or the TOS. 

13. Contributions to Kearney Group

By submitting ideas, suggestions, documents, and/or proposals for the Service and/or Portal functionality, features, or future developments ("Contributions") to Kearney Group, you acknowledge and agree that: (a) your Contributions do not contain confidential, patented or proprietary information; (b) Kearney Group is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Kearney Group shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Kearney Group may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Kearney Group without any obligation of Kearney Group to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Kearney Group under any circumstances.

In the event that any of your Contributions do contain confidential, patented or proprietary information, you agree to assume full responsibility for any and all costs Kearney Group may be subjected to now and in the future as a result of or in connection with this Contribution.

14. Indemnity

You agree to fully indemnify and keep indemnified Kearney Group and its subsidiaries, affiliates, Representatives, and licensors from and against any claims, losses, damages, costs, expenses, liabilities, proceedings or demands (including reasonable legal fees), howsoever arising (to the fullest extent permitted by law) arising out of or in connection with:

  1. Content you submit, post, transmit, modify or otherwise make available through the Portal;
  2. your use of the Service;
  3. any act or omission by you in connection with the Service;
  4. your use of, or reliance on, any Content in the Portal or obtained in connection with the Service;
  5. your conduct in connection with the Service, including any breach by you of the TOS;
  6. any unlawful use of the Service by you or any person acting on your behalf; or
  7. your violation of any rights of another.

15. No Commercial or Non-Commercial Reuse of MyKearney Online

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial or non-commercial purposes, any portion or use of, or access to, the Service (including all Content on the Portal, advertisements, Software and your MKO account).

16. General Practices Regarding Use and Storage

You acknowledge that Kearney Group may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content uploaded, posted or transmitted to the Portal will be retained by the Service, the maximum number of messages and/or other communications that may be sent from or received by an account on the Service, the maximum size of any message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Kearney Group’s servers on your behalf, the maximum file size of any individual file that may be uploaded using the Service, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Kearney Group has no responsibility or liability for the deletion or failure to store any files, messages, and other communications or other Content maintained or transmitted by the Service. You acknowledge that we reserve the right to log off accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to modify these general practices and limits from time to time.

17. Modifications to and Unavailability of the Service

Kearney Group reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. 

You further acknowledge that whilst we make every effort to keep the Service up and running smoothly, we do not guarantee or warrant that the Service generally available will be uninterrupted or error-free.

You agree that Kearney Group shall not be liable to you or to any third party for:

  1. any modification, suspension or discontinuance of the Service (or any part thereof) or for any harm or injury that occurs as a result of the inability to use the Service in the event of a modification, suspension or discontinuance of the Service;
  2. the Service being temporarily unavailable for reasons of maintenance or improvement, or due to technical issues beyond our control. 

18. Account Termination

You may terminate your MKO account, any associated email address and access to the Service by submitting such termination request to Kearney Group.

We may at our absolute discretion terminate, suspend or limit your access to your MKO account or the Service without prior notice at any time without explanation.

  1. In the event that we terminate, suspend, or limit your access to, the Service in circumstances where you have paid a fee in advance for use of the Service, you will (subject to paragraph (b) below) be entitled to a refund of the fee (or part-thereof) paid for such part of the Service not delivered to you.
  2. We are entitled to terminate, suspend, or limit your access to, the Service, without any liability to refund any fees paid for the Service and without any liability for any other loss or damage in the following circumstances: (i) you breach the TOS or other incorporated agreements or guidelines; (ii) requests by law enforcement or other government agencies; (iii) unexpected technical or security issues or problems; (iv) extended periods of inactivity; (v) engagement by you in fraudulent or illegal activities; (vi) suspicious or malicious behavior and/or other actions which, in the Kearney Group’s opinion (and at the Kearney Group’s sole discretion), show a disregard for security and could potentially cause harm to you, the Service, Kearney Group, other users, Kearney Group clients or the public; (vii) cessation of our professional advisory relationship and/or other Kearney Group services; (viii) nonpayment of any fees owed by you in connection with any Kearney Group service; and/or (ix) any other misconduct or unlawful activity on your behalf.
  3. Save as set out in paragraph (a) above, Kearney Group shall not be liable to you or any third party for any termination of, suspension of, or limitation of your access, to, the Service or your MKO account, or for any harm or injury that occurs as a result of the inability to use the Service.
  4. Termination of your MKO account includes any or all of the following: (i) removal of access to all or part of the offerings within the Service; (ii) deletion of your password and all related information, files and Content associated with or inside your MKO account (or any part thereof); and (iii) barring of further use of all or part of the Service.
  5. Kearney Group may, but is under no obligation to, consider appeals of terminations or suspensions on a case-by-case basis and reserves sole discretion to uphold or reverse the termination or suspension decision. Additionally, Kearney Group is under no obligation to provide appellants with a justification for its appeal decision.

19. Third Parties

Your correspondence or business dealings with, or participation in promotions of, third parties found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that Kearney Group shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service.

20. External Links

The Service may provide, or third parties may provide, links to other internet sites or resources. You acknowledge and agree that Kearney Group is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Kearney Group shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

21. Kearney Group’s Proprietary Rights

You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in advertisements or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorised by Kearney Group or the applicable licensor, you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Service, such Content or the Software, in whole or in part.

Kearney Group grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorised access to the Service.

You agree not to access the Service by any means other than through the interface that is provided by Kearney Group for use in accessing the Service. 

The framing, scraping, data-mining, extraction, collection or other manipulation of the Content on the Portal in any form and by any means whatsoever is strictly prohibited. 

22. Disclaimer of Warranties

You expressly understand and agree that:

  1. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.  To the maximum extent permitted by law, Kearney Group and its subsidiaries, affiliates, Representatives and licensors expressly exclude all representations, warranties and terms (whether express or implied) which, but for the TOS, might apply in relation to your use of the Service.
  2. Kearney Group and its subsidiaries, affiliates, Representatives and licensors do not make any representations, guarantees or warranties that: (i) the use of the Service or any Content in the Portal will meet your requirements; (ii) the Service or any Content in the Portal will be uninterrupted, timely, secure, reliable, up to date, complete or error-free; (iii) the results that may be obtained from the use of the Service will be accurate or reliable; (iv) the quality of any products, services, information or other material purchased or obtained by you through the Service will meet your expectations; and (v) any errors in the Service or any Content in the Portal will be corrected.
  3. We do not guarantee or warrant to you that material available for downloading through the Service or delivered via electronic mail through the Service will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties.  Any material downloaded or otherwise obtained through the use of the Service is accessed at your own discretion and risk, and you will be solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means for the reconstruction of any lost data.  You hereby waive any and all claims and causes of action with respect to any damage to your computer system, internet access, download or display device, or loss of data that results from the download of any such material.
  4. No advice or information, whether oral or written, obtained by you from Kearney Group or through or from the Service shall create any warranty not expressly stated in the TOS.
  5. A small percentage of users may experience epileptic seizures when exposed to certain light patterns or backgrounds on a computer screen or while using the Service. Certain conditions may induce previously undetected epileptic symptoms even in users who have no history of prior seizures or epilepsy. If you, or anyone in your family, have an epileptic condition, consult your physician prior to using the Service. Immediately discontinue use of the Service and consult your physician if you experience any of the following symptoms while using the Service: dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions.
  6. We have taken reasonable steps to ensure the usability and accessibility of the service to individuals who are colour blind and/or otherwise visually impaired. Nevertheless, Kearney Group and its subsidiaries, affiliates, Representatives and licensors make no warranty as to the usability and/or accessibility of the Service to individuals with such impairments, nor offer any guarantee to remedy any such issues in the future.

23. Limitation of Liability and Indemnity

You expressly understand and agree that to the maximum extent permitted by law, Kearney Group and its subsidiaries, affiliates, Representatives, and licensors shall not be liable to you for any direct, indirect, punitive, incidental, special, consequential or exemplary loss or damages, including, but not limited to, damages for loss of profits, income, goodwill, use, data, contracts or other intangible losses (even if Kearney Group has been advised of the possibility of such damages) howsoever caused (including without limitation by reason of misrepresentation, negligence, other tort, breach of contract or breach of statutory duty) which may be incurred by you or any other party arising out of or in connection with: (a) the use, misuse, or the inability to use the Service; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to or alteration of your transmissions or data; (d) statements or conduct of any third party on the Service; (e) any business interruption of any type; (f) any loss of data; (g) any decision made or act or omission by you or anyone else in reliance on any Content obtained, or omitted from the Portal or through the Service; or (h) any other matter relating to the Service.

24. Exclusions and Limitations

These TOS are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations.  If such legislation applies, to the extent that our liability cannot be excluded by law, we limit our liability in respect of any claim to the total amount paid by you (if any) for any chargeable Service purchased by you. 

25. Special Admonition for the Service Relating to Financial Matters

You agree that you must evaluate, and bear all risks associated with, the use of any Content in the Portal, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that the Content provided by the Service is for your reference only and does not constitute financial advice or financial product advice. The Content should not be used in whole or in part, as a primary source of information when making financial decisions, nor should it substitute for specific advice from a Kearney Group adviser. Content provided in the Portal does not necessarily take into account your individual objectives, financial situation or unique needs and as such, you should not act on advice found within the Portal without consulting an authorised Kearney Group adviser. You may also wish to obtain further independent legal, financial and/or other professional advice before making a decision in relation to any Content available to you through the Portal.  Kearney Group and its subsidiaries, affiliates, Representatives and licensors shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the Service, and shall not be responsible or liable, under any circumstances, for any loss or damage of any kind incurred as a result of the use of, or inability to use any Content which is posted, emailed, transmitted or otherwise made available to you via the Service, including, but not limited to any trading, investment or other financial decisions undertaken based on such information.

26. No Third-Party Beneficiaries

You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.

27. Notices from Kearney Group

Kearney Group may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, SMS, MMS, text message, postings on the Service, phone, fax, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate this TOS by accessing the Service in an unauthorised manner. Your agreement to this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the Service in an authorised manner.

28. Trademark Information

You agree that all of Kearney Group’s trademarks, trade names, service marks and other Kearney Group logos and brand features, and product and service names are trademarks and the property of Kearney Group (the "Kearney Group Marks"). Without Kearney Group's express prior written permission, you agree not to display, modify, alter or use in any manner the Kearney Group Marks.

29. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement

Kearney Group respects the intellectual property of others, and we ask our users to do the same. Kearney Group may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe copyright and/or intellectual property rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Kearney Group with the following information:

  1. an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright or other intellectual property interest;
  2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. a description of where the material that you claim is infringing is located on the Portal;
  4. your address, telephone number, and email address;
  5. a statutory declaration by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law;
  6. a statutory declaration by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorised to act on the copyright or intellectual property owner's behalf.

Claims of copyright or other intellectual property infringement should be directed to us using the contact details set out in clause 32 below.

30. General Information

Entire Agreement. The TOS constitutes the entire agreement between you and Kearney Group about their subject matter and governs your use of the Service, superseding all other representations, arrangements, agreements or prior versions of the TOS, with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Kearney Group services, affiliate services, third-party content or third-party software.

Governing Law. The Service is controlled by us from our offices located in the State of Victoria, Australia.  It can be accessed by most countries around the world.  As each country has laws that may differ from those of Victoria, Australia, by accessing the Service, you agree that the statutes and laws of Victoria, Australia will govern the TOS and the agreement created by the TOS and shall apply to all matters relating to the use of the Service.  You irrevocably submit to the jurisdiction of the courts of Victoria, Australia.

Waiver and Severability of Terms. The failure of Kearney Group to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions. 

No Right of Survivorship and Non-Transferability. You agree that your MKO account is non-transferable and any rights to your MKO account or Content within your account terminate upon your death. Upon notice of your death, your account may be terminated and all contents therein deleted.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in the TOS are for convenience only and have no legal or contractual effect.

31. Violations of this Agreement

If you suspect any individual of any violation(s) of the TOS please contact the Kearney Group immediately.

Last updated 9 April 2013

32. Kearney Group Contact Details

Any queries regarding the TOS or the Service, or any notices required to be given under the TOS, should be directed to us using the following contact details:

By mail:
Kearney Group
PO Box 3347

Burnley North, VIC 3121

In Person:
Kearney Group
Suite 8, Skipping Girl Place

651 Victoria Street,

Abbotsford, VIC 3067

By phone: +61 3 9428 8822
By fax: +61 3 9427 7786

By email: info@kearneygroup.com.au