1. DEFINED TERMS
This clause 1 defines terms used in this agreement. Other terms are defined elsewhere in this agreement.
(a) Consumer Rights is defined in clause 6.7.
(b) Learning comprised of lessons, course/s activities, resources and materials as determined and varied by us from time to time.
(c) Learning Fees means the fees for lessons, and any other sums payable to us by you from time to time in connection with the lesson.
(d) Intellectual Property means existing and future copyright, trademarks, designs and patents, whether registered or not.
(e) Materials means any document, image, video, audio recording, online post, live performance, or the like, delivered or made available by us to Students in the course of learning.
(f) Student means a person enrolled in learning.
(g) We means Carmen Debono and, where it would be appropriate in the context, includes employees and contractors.
(h) You means the individual entering into this agreement by accepting our offer to supply learning on the terms of this agreement. That person will be the person in whose name your account is held.
2 COURSE FEES
(a) When you enrol in a lesson, and subject to your payment of all learning fees in accordance with this agreement, we will grant you access to the lesson and copies of the resources corresponding to the package you have purchased from us and in accordance with the learning schedule.
(b) To the extent that you create user-generated content or interact with any other person delivering or taking the lesson, you must do so solely in respect of the lesson, you must not create any content or behave in a manner that is obscene, offensive, anti-social, defamatory or otherwise unsavoury, or in any way unlawful, or likely to be so, and you must not use any learning forum, channel or contact list to market or supply any goods or services. You must not share your login or account information with any other person, nor permit them access to the lesson. We may terminate this agreement immediately if we reasonably believe that you have breached or are threatening to breach this provision.
(c) You must pay the lesson fees as required under the process of enrolling in the lesson. If and to the extent that you do not pay the lesson fees, we may withhold access to the lesson.
(d) You acknowledge that in the event that you fail to pay all lesson Fees as required, our loss and damage may include all of the unpaid amount by reason of the fact that the additional cost to us of accommodating a single additional Student is very low or nil.
(e) Subject to clause 6.7 (consumer rights) or any money-back guarantee that we offer, we are under no obligation to provide you with any refund of lesson fees paid to us by you, including in circumstances where you change your mind or you suffer misadventure, or if we terminate this agreement in accordance with this agreement.
3. WARRANTIES, DISCLAIMERS ETC
(a) Subject to clause 6.7 (consumer rights), we give no warranty or guarantee that the lesson will be of any particular standard, quality or grade. The Course may contain errors, omissions and matters of opinion. You rely on the lesson at your own risk (whether financial, physical, psychological or otherwise), including for the reasons set out below.
(b) We give no warranty that being a Student will confer on you any particular objective, outcome or benefit.
(c) You acknowledge that the lesson is generic in nature and for the purposes of general guidance and education of all Students who undertake the Course, without regard for their personal circumstances (including personal financial circumstances). The lesson is intended to provide only a summary and overview of the topics covered to assist Students in making their own judgments and in seeking personalised professional or medical support/advice as needed.
(d) Where, anywhere on our website, within the resources or in relation to the lesson we provide hypertext link to a website not controlled by us we are not responsible nor bear any liability.
(e) You warrant that you are an individual, even if an entity will pay the lesson fees on your behalf.
(k) You warrant that all information you provide to us is accurate and complete. We may terminate this agreement immediately if you breach this warranty and there is a material detriment to us.
4. INTELLECTUAL PROPERTY
(a) You acknowledge that, as between you and us, we own all Intellectual Property in and in relation to all Materials, including literary works, artistic works, sound recordings and cinematograph films, and including live performances and other subject-matter created or delivered ‘live’ (Live Subject-Matter).
(b) You acknowledge that any information, content or contribution (Contribution) that you make to or in relation to the content or conduct of the lesson (as distinct from submitting your own work as an ‘assignment’ (Submission), is unsolicited by us and you agree that we may use that Contribution as we see fit and that, should any Intellectual Property subsist in the Contribution, you hereby assign all right, title and interest in that Intellectual Property to us. As further consideration from you to us, you consent to our including your Submissions in future lesson content by way of example of Student work, without payment by us of licence fees or royalties.
(c) Without limiting our rights of copyright, you must not copy, communicate, distribute, disseminate or in any way commercially exploit the Materials. You must not make any recording or copy of any Live Subject-Matter. We may immediately withhold access to the Course or terminate this agreement if you breach or threaten to breach this clause 4. You indemnify and must defend us and our Partners against any claim (and loss arising therefrom) by third party arising from your breach of this clause (c).
5. LIMITATION OF LIABILITY
Subject to clause 6.7 (consumer rights) and without limiting any other limitation or exclusion of liability in this agreement: (a) the liability of each party to the other is limited to the extent to which the other party caused the liability to arise by reason of its own negligence, breach of contract or other unlawful conduct; (b) the liability of each party to the other is further limited to direct, general loss to the exclusion of indirect, special or consequential loss; (c) our liability to you is further limited to supplying the Course again or paying the cost of having the Course supplied again; and (d) we are not liable to you for any loss you suffer merely by reason of being a Student or having relied on the Course.
6 THIS AGREEMENT
The communication of a copy of this agreement to you, whether by email, availability via internet link or otherwise, is the making of a contractual offer by us to you. You may accept the offer using an online acceptance mechanism (eg tick box ‘I accept’) or in any other way that we agree to accept in writing to you. By accepting our offer, you enter into an agreement with us on the terms recorded in this agreement.
This agreement commences when this agreement is formed pursuant to clause 6.1 and continues until we have supplied the lesson in accordance with this agreement, or until lawfully terminated earlier.
(a) This agreement includes any schedules to this agreement. To the extent there is any irreconcilable inconsistency between the body of this agreement and the schedule, the body of this agreement prevails.
(b) Subject to paragraph (a) and clause 6.5, this agreement, as a document, embodies all the express terms of the agreement, and supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to the Course.
(c) If you enter into any agreement with any third party as a necessary incident of becoming a Student, such as with a payment processing provider, you must comply with all terms of that agreement.
(d) The terms of any Partner offer or agreement are terms of a separate agreement and not terms of this agreement.
6.4 Principles of interpretation of agreement
In this agreement, unless expressly to the contrary and as appropriate in the context: (a) an expression in the plural may be read in the singular, and vice versa; (b) all references to currency or amounts of money are in Australian Dollars; (c) in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation only survives to the extent that the condition remains satisfied during the term of this agreement; (d) a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; (e) a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation; (f) a reference to a person doing an act includes a reference to the doing of the act on behalf of the person; (g) a reference to one alternative does not, of itself, exclude any other alternative; (h) an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party; (i) an expression prohibiting the doing of an act includes the prohibiting of offering, attempting or purporting to do the act, or aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act; (j) a list of rights is not to be read as an exhaustive list of rights; (k) an inclusive expression is without limitation; (l) an expression of ownership includes the legal or beneficial ownership; (m) a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer; (n) a reference to an indemnity is a reference to compensation for loss, not prevention of loss; (o) a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing; (p) a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and (q) a reference to a schedule, provision, clause or paragraph is a reference to a schedule, provision, clause or paragraph of this agreement.
We may vary this agreement by giving you notice in writing via the contact details you have provided on formation of this agreement, so long as the variation does not cause material detriment to you.
Subject to this agreement, no waiver of rights, actions or remedies is effective unless in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not constitute a waiver of the relevant right, action or remedy.
6.7 Consumer rights
The Course and anything else we provide may come with guarantees that cannot be excluded under the Australian Consumer Law 2010 (Cth) (Consumer Rights). All terms of this agreement granting us rights and limiting our obligations and like terms, are to be read as being to the maximum extent permitted by law. Nothing in this agreement is intended to modify or oust Australia Consumer Law and related legislation.
To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason, the other provisions of this agreement are valid and enforceable.
6.9 Assignment & novation
Your enrolment in the Course is personal to you and not transferable. You must not assign your rights nor novate your rights and obligations under this agreement without our written consent.
Without limitation, clauses 3, 4 and 5 (warranties & disclaimers etc, intellectual property and limitation of liability), as well your obligations to pay fees and charges, survive termination of this agreement.
6.11 Governing law & jurisdiction
The laws of the state of New South Wales, Australia, govern this agreement. The parties acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes arising under or in relation to this agreement. To the extent they come before any court, all disputes arising under or in relation to this agreement will be determined in the courts of NSW.