By using this Website in any way, or by buying a Product (including a Provent Online Learning Product, as defined below) from us, you agree, without limitation or qualification, to be bound by, and to comply with, these terms and conditions (Agreement).
1.Definitions and Interpretation
In this Agreement:
“we/us/our” means: Provent Online PL (CAN / ABN XXXXXXXXXX).
“you/your” means: a visitor to this Website or a customer who orders a Product from us.
Confidential Information means all trade secrets and all financial, marketing and technical information, ideas, concepts, know-how, processes and knowledge which is confidential or of a sensitive nature, but excludes that which is in the public domain.
Force Majeure means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
(a) acts of god, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; and
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution.
Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(a) has the same meaning as in the GST Law;
(b) includes any other goods and services tax or any tax applying to this Agreement in a similar way; and
(c) includes any additional tax, penalty tax, fine, interest or other charge under a law for such a tax.
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means any intellectual property rights which exist in Australia or throughout the world including:
(a) any patents, utility models, copyrights, registered or unregistered trademarks or service marks, trade names, brand names, indications of source or appellations of origin, eligible layout rights, plant variety rights, registered designs and commercial names and designations;
(b) any invention, discovery, trade secret, know-how, computer software and confidential, scientific, technical and product information;
(c) any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products; and
(d) any letters patent, deed of grant, certificate or document of title for anything referred to in paragraphs (a), (b) or (c) of this definition and any medium in which anything referred to in those paragraphs is stored or embodied.
Licence means a licence granted by us under Clause 4.1.
Order has the meaning given in Clause 2.1.
Website means the entire computing hardware and software installation that is, or supports, www.proventonline.com
Password means a password provided by us under Clause 6.2
Privacy Act means the Privacy Act 1988 (Cth).
Product means the Provent Online Learning Product or and other product or service offered for sale on the Website.
Provent Online Learning Product means our online education product comprising of voice over, slides, questions and activities, including updates and support services.
Session means an occasion where you log-on to the Website using the username and Password.
In this Agreement, headings and boldings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) any expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
(c) a reference to any thing (including any right) includes a part of that thing;
(d) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(e) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision;
(f) a reference to $ or dollars in the Website is a reference to Australia dollars unless otherwise specified;
(g) a reference to time is a reference to Sydney time; and
(h) if an act prescribed under this Agreement to be done by a party on or by a given day is done after 5.00 pm on that day, it is taken to be done on the next day.
2.Order and Acceptance
2.1 You must order a Product by registering your personal and credit card details on the Website using our order form interface (Order).
2.2 An Order will not be accepted by us unless and until:
(a) we are satisfied that we have received payment from you in respect of the Order; and
(b) we have sent you confirmation of acceptance of your Order via email.
3.Delivery and Changes
3.1 Following confirmation in accordance with Clause 2.2 above, the Product may be either:
(a) provided to you by email;
(b) made available for you to download; or
(c) provided in the way we have explained on the Website.
3.2 We may change the nature or provision of the Product at any time. We will notify you about any such change by email or by posting details on the Website.
3.3 If a change we make in the provision of the Product involves action on your part, and you do not take that action within a period of time deemed reasonable by us, we are entitled to immediately terminate the Licence and you must either return the Product to us or provide us with evidence to our satisfaction of the destruction of the Product.
3.4 We will provide updates to the Product from time to time as we decide and without advance notice.
3.5 We will use our reasonable commercial endeavours to provide email support for the Product during Business Hours and to maintain the Website so that you have constant use, but there will be times when our support and your use may be interrupted. Such interruption for reasonable periods for maintenance or causes beyond our control is not a ground for repayment of money you have paid. When we are aware of the likelihood of down time, we will tell you in advance.
3.6 We may change the terms of this Agreement from time to time. The terms that apply to your Order are those posted here on the Website on the day you place your Order.
3.7 If you buy a Product from us under any arrangement which does not involve your Order from the Website, this Agreement applies to the purchase of that Product with all necessary modifications.
4.1 Following acceptance of your Order in accordance with Clause 2 and on delivery of the Product in accordance with Clause 3, we grant to you a non-exclusive, non-assignable licence (that you cannot sublicence) to use the Product in accordance with the terms of this Agreement.Use of the Product
5.1 If we deliver a Product or make it available for use on our Website:
(a) you may only access and use the Product via the Website;
(b) we will also issue you with an online account and Password provided that you, when making your purchase order, provide us with a unique email address that you acknowledge is necessary in order to receive the username and Password; and
(c) we grant you a licence to access and use the Product through the Website (using your online account and Password).
5.2 You must not:
(a) use, copy, store, save, reproduce, display, sell, publish, or broadcast the Product other than as authorised under this Agreement;
(b) transmit, circulate or distribute the Product to any third party other than as authorised under this Agreement;
(c) remove, conceal or alter any copyright notices contained in the Product;
(d) create or store in electronic form any shared library or archive of the Product; or
(e) share your username or Password with any other person.
5.3 You must notify us if you learn or suspect that any Password is either being used by any other person.
5.4 In the event that you breach the terms of this Agreement:
(a) you acknowledge that damages may be an insufficient remedy and that any damages payable are without prejudice to any other injunctive relief or contractual liability that we are entitled to in accordance with this Agreement as a result of any breach of this Agreement, including (but not limited to) a breach of our Intellectual Property Rights; and
(b) we may suspend your access to the Product and to the Website; and
(c) we may terminate the Licence and you must either return the Product to us or provide us with evidence to our satisfaction of the destruction of the Product
6.1 You warrant and represent to us that:
(a) you are over 18 years of age; and
(b) you have provided us and will continue to provide us accurate, up to date, and complete information in respect of the registration details contained in an Order.
6.2 We will issue you with 1 password in respect of each Order for a Product accepted by us in accordance with Clause 2.2.
6.3 If you use the Website, you are responsible for maintaining the confidentiality of your account and Password and for preventing any unauthorised person from using your computer.
6.4 You accept responsibility for all activities that occur under your account or Password. You should tell us immediately if you believe any person has accessed your account without your authority or logged on to your account and changed your Password. You must not permit any other person to use your Password and/or account.
6.5 We reserve the right to refuse you access to the Website at any time.
7. Price and Payment
7.1The price payable for a Product is the price that appears on the Website from time to time in relation to that Product.
7.2 You must pay for the Product by credit card at the same time you place an Order.
7.3 Payments for the Product are non-refundable.
8.1 You have no right to cancel an Order once you have sent us an Order.
9.Taxes and Duties
9.1 Unless otherwise expressly stated, all prices or other sums payable under this Agreement are inclusive of GST and other taxes.
10. Warranties and Liability
10.1 We shall make reasonable efforts to ensure:
(a) the accuracy of any information contained in the Product and the Website; and
(b) the Product and the Website does not contain any computer viruses.
10.2 We give no warranty and make no representation, express or implied, as to:
(a) the adequacy or appropriateness of the Product or the Website for your purpose;
(b) any implied warranty or condition as to merchantability or fitness of the Product or the Website for a particular purpose other than that for which the Products or the Website are commonly used;
(c) the accessibility or availability of the Website at any given time;
(d) the use of, or results of the use of the Product or the Website or their compatibility with your equipment, software or telecommunications connection;
(e) compliance with any law; or
(f) non-infringement of any right, including (but not limited to) any Intellectual Property Rights.
10.3 We do not exclude any rights or remedies available to you under the Trade Practices Act 1974 (Cth) or any similar legislation in Australia that cannot be excluded, restricted or modified.
10.4 Otherwise, all representations and warranties in respect of the Product and the Website that may be implied by law are excluded.
10.5 To the extent we are liable for breach of a representation or warranty which cannot be excluded, liability is restricted at our option to:
(a) the resupply of the Product or the payment of the costs of having the Product resupplied;
(b) the replacement of the Product or supply of equivalent products; or
(c) the repair of the Product or the payment of the cost of having the Product repaired.
10.6 Our Website may contain links to other Internet websites outside our power and control. You acknowledge and agree that we shall not be liable in any way for the content of any such linked website, nor for any loss or damage arising from your use of any such website.
10.7 We are not liable in any circumstances for special, indirect or consequential loss or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of the Website or the purchase of a Product.
10.8 The total liability of us under this Agreement shall, to the extent permitted by law, under no circumstances exceed the fees payable by you for the relevant Product.
11.1 You must indemnify us and keep us indemnified in respect of any claim, action, damage, loss, liability, cost, expense or payment suffered, paid or incurred by us in respect of:
(a) any matter or thing being other than as represented or warranted by you under this Agreement;
(b) your use of the Website; or
(c) the infringement by you, or by any other person using your computer, of any of our Intellectual Property Rights or the Intellectual Property Rights of a third person.
12.1 The parties acknowledge and confirm that they will treat the Confidential Information as confidential and shall not (other than as required by any applicable law) use or disclose to any person the Confidential Information.
12.2 Each party must indemnify the other party and keep the other party indemnified in respect of any claim, action, damage, loss, liability, cost, expense or payment suffered, paid or incurred by the first party in respect of a breach by the other party of the obligations contained in Clause 12.1.
13.1 You acknowledge that all Intellectual Property Rights in the Product and the Website are owned by us and you will not do or allow to be done anything that infringes our Intellectual Property Rights.
14.1 You must not, and must not allow any other person to, violate or attempt to violate any aspect of the security of the Website.
14.2 You must not use any software tool for the purpose of extracting data from the Website other than as authorised under this Agreement.
14.3 You acknowledge that a breach by you of the obligations contained in this Clause 14 is unlawful and may result in criminal prosecution.
15.1 We are subject to the provisions of the Privacy Act. The Privacy Act contains 10 National Privacy Principles that set standards for the handling of personal information.
16.Governing Law and Jurisdiction
16.1 This Agreement is governed by and shall be construed in accordance with the law of New South Wales, Australia.
16.2 The parties to this Agreement irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
17.1 A notice, demand, consent or approval or communication under this Agreement (Notice) must be:
(a) in writing, in English, and signed by a person duly authorised by the sender; and
(b) delivered by email to the recipient’s address as varied by any Notice given by the recipient to the sender.
17.2 A Notice given in accordance with Clause 17.1 takes effect when it is taken to have been received (or at a later time specified in it), and is taken to be received by email, at the time of transmission unless the sender is notified that the email was undeliverable.
17.3 In proving service by delivery by email, it shall be necessary only to prove that the communication was sent to the correct email address.
8.1This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
19.1 A party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
19.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
20.1 This Agreement may only be amended or supplemented in writing signed by the Parties.
20.2 No employee, agent or representative of us is authorised by us to modify, amend, waive or contradict any of the terms of this Agreement and us shall not under any circumstances be bound by or liable for any commitment, assurance or other statement, or any modification, amendment or waiver of this Agreement, made by any such employee, agent or representative.
21.1 Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction
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