Terms & Conditions

ONLINE COURSE TERMS AND CONDITIONS

This Agreement is entered into between us and you, together the Parties and each a Party.

  1. Acceptance and Term

1.1            This Agreement is entered into between Action Advisory Pty Ltd (ACN 653 482 458) (we, us, or our) and you (you, or your), together the Parties and each a Party.

1.2            You acknowledge that you have read, understood, and agree to be bound by this Agreement, and accept these terms by clicking ‘I accept’.

1.3            This Agreement will operate for the duration of the Online Course’s existence (Term).

1.4            We reserve the right to modify the structure, content, and pricing of the online course (Online Course) at any time, by providing written notice to you. By continuing to access the Online Course after the notice, you agree to the updated course structure, and content. If you do not agree to these changes and they adversely affect your rights, you may cancel your enrolment in the Online Course with effect from the date of the change in these Terms by providing written notice to us. If you cancel your enrolment,

(a)             you will no longer be able to access the Online Course from the date of cancellation; and

(b)            if you have paid fees upfront, you will be issued a pro-rata refund, calculated based on the date of termination and the period for which you have paid.

  1. Online Course and Platform

2.1            Subject to clause 4, we will provide you with access to our exclusive online course via our designated online platform (Online Platform) which contains resources and content available for you to view on-demand.

2.2            You may register on the Online Platform and create an account to access the Online Platform’s features.

2.3            You are only entitled to one account per Online Course purchased, and you agree that you will not share your account password with any other person. Your account is personal and you must not transfer or provide it to others.

2.4            We agree to use our best endeavours to make the Online Course and Online Platform available at all times. However, from time to time we may perform reasonable scheduled and emergency maintenance, and the Online Course and Online Platform may be unavailable during the times we are performing such maintenance.

2.5            To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Online Course and Online Platform to be unavailable.

2.6            Should you be unable to access the Online Course and Online Platform, or should you have any other questions or issues impacting on your use and enjoyment of the Online Course and Online Platform, you must place a request via email. We will endeavour to respond to any support requests in a reasonable period.

2.7            You acknowledge and agree that any information, advice, material or work provided by us as part of the Online Course does not constitute legal, financial, due diligence or risk management advice.

  1. Your Obligations

3.1            You agree to (and to the extent applicable, ensure that your Personnel agree to):

  • comply with this Agreement, all applicable Laws, and our reasonable requests; and
  • not (or not attempt to) disclose, or provide access to, the Online Course and Online Platform to third parties without our prior written consent.

3.2            You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 3.

  1. Price and Payment

4.1            In consideration for us providing you access to the Online Course and Online Platform, you agree to pay us an upfront fee as set out on the Online Platform.

4.2            We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

4.3            You agree that the third-party payment processor may require you to submit to their terms and conditions before utilising the payment processor.

4.4            When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

  1. Warranties and Representations

5.1            Each Party represents and warrants that:

  • it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
  • this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.

5.2            You represent and warrant that:

  • all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
  • no insolvency events (including but not limited to bankruptcy, receivership, voluntary administration, liquidation or creditors’ schemes of arrangement) affecting you or your property are occurring or are likely to occur; and
  1. Intellectual Property

6.1            As between the Parties:

  • we own all Intellectual Property Rights in Our Materials;
  • you own all Intellectual Property Rights in Your Materials; and
  • nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

6.2            As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.

6.3            We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Online Platform and Online Course, as contemplated by this Agreement.

6.4            You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.

6.5            If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.

6.6            This clause 6 will survive termination or expiry of this Agreement.

  1. Confidential Information

7.1            Subject to clause 7.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.

7.2            Clause 7.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 7.1.

7.3            This clause 7 will survive the termination of this Agreement.

  1. Australian Consumer Law

8.1            Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Online Course and Online Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.

8.2            Subject to your Consumer Law Rights, we provide all material, work and services (including the Online Course) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.

8.3            This clause 8 will survive the termination or expiry of this Agreement.

  1. Liability

9.1            Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:

  • neither Party will be liable for Consequential Loss;
  • a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
  • our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Price paid by you to us in respect of the supply of the Online Course to which the Liability relates.

9.2            This clause 9 will survive the termination or expiry of this Agreement.

  1. Term and Termination

10.1         This Agreement will operate for the Term.

10.2         This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

  • the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
  • the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

10.3         Upon expiry or termination of this Agreement:

  • we will immediately cease providing access to the Online Course and Online Platform;
  • without limiting and subject to your Consumer Law Rights, any payments made by you to us for access to the Online Course are not refundable to you;
  • you are to pay for any Online Course or Online Platform access provided prior to termination, including any Online Course or Online Platform access which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and
  • we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 7.

10.4         Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

10.5         This clause 10 will survive the termination or expiry of this Agreement.

  1. General

11.1         Amendment: Subject to clause 1.4, this Agreement may only be amended by written instrument executed by the Parties.

11.2         Assignment: Subject to clauses 11.3 and 11.12, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

11.3         Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

11.4         Disputes:  A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 11.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.

If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may:

(a)             where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Brisbane, QLD, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.

(b)            where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Brisbane, QLD, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.

Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

11.5         Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

(a)             as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and

(b)            uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

11.6         Further Assurance: Each Party must to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

11.7         Governing Law: This Agreement is governed by the laws of QLD.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in QLD and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

11.8         Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

11.9         Publicity: Despite clause 7,  you agree that we may advertise or publicise the broad nature of our supply of the Online Course to you, including on our website or in our promotional material.

11.10      Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

11.11      Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

11.12      Subcontracting: We may subcontract the provision of any part of the Online Course without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

11.13      Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.

  1. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Business Day means a day on which banks are open for general banking business in Brisbane, QLD, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date this Agreement is signed by the last of the Parties.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 8.1.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Online Course

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Online Course, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.

Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Price means the price set out in clause 4, as adjusted in accordance with this Agreement.

Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.