Terms and Conditions

Terms and Conditions

Introduction

This main subscription agreement (“agreement”) governs your trial of the Service.

If you continue to use the Service, this agreement will also govern your purchase and ongoing use of those services. Course Sales Pty Ltd may change this agreement from time to time at its absolute discretion without prior notice to You. You agree that such changes will be binding on You.

It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Website.

The date you register to use the Service, pay subscriptions or use the Service you acknowledge that You have read and understood this agreement, have the authority to act on behalf of any person for whom You are using the Service and accept this agreement. This is the date of You accepting the agreement.

It is effective between You and Us as of the date of You accepting this Agreement.

Definitions

"Access Fee" means the fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which Course Sales Pty Ltd may change from time to time on notice to You).

"Agreement" means this agreement between Course Sales Pty Ltd and You;

"Data" means any data entered by You or with Your authority into the Website.

"Intellectual Property Rights" means all patents, unpatented inventions, design rights, copyrights (including, without limitation, rights in computer software), rights in databases, trade marks, trade names, rights in trade secrets, know-how and all other intellectual property rights of any nature whatsoever, and all rights of a similar nature or having similar effect, throughout the world whether registered or unregistered and including all applications and rights to apply for any of the same;

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Order Form" means the ordering documents electronic or paper for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.

"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.

"Services" means the online, Web-based applications and platform provided by Us via http://www.CourseSales.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a 30-day free trial or under an Order Form, including associated offline components but excluding Third Party Applications.

"User Guide" means the online user guide for the Services, accessible via our Services, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the 30-day free trial described below.

"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.

"We," "Us" or "Our" means the Course Sales Pty Ltd company described below.

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services.

Trial details

We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the thirtieth day after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You.

Any data you enter into the services, and any customizations made to the services by or for you, during your 30-day free trial will be permanently lost unless you purchase a subscription to the same services as those covered by the trial, purchase upgraded services, or export such data, before the end of the 30-day trial period. You cannot transfer data entered or customizations made during the 30-day free trial to a service that would be a downgrade from that covered by the trial; therefore, if you purchase a service that would be a downgrade from that covered by the trial, you can request us to export the data for you or your data will be permanently lost.

Purchased services

Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

Fees and payment

Without prejudice to any other right or remedy it may have, Course Sales Pty Ltd reserves the right to set off any amount owing to it at any time by You against any amount payable by Course Sales Pty Ltd to You under or in connection with this Agreement.

If You fail to pay any amount payable by it under this Agreement then access to the Services will be severely restricted or removed until payment is made.

No refund of any subscription fees shall be given under any circumstances.

Our obligations

Basic Support is the provision of up to date help files, escalation procedure, online ticketing system and a roadmap of improvements and bug fixes. This excludes configuration you have made that requires work or modification to make your license operational.

We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of nature, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

Your obligations

You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

As a condition of these Terms, when accessing and using the Services, You must:

  1. not attempt to undermine the security or integrity of Course Sales Pty Ltd's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;

  2. not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;

  3. not attempt to gain unauthorised access to any materials, data or features other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;

  4. not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and

  5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.

Usage Limitations. Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes and license type. You are permitted to make against Course Sales Pty Ltd’s application programming interface. Any such limitations will specified within the Service.

Confidentiality and privacy

Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section Compelled Disclosure or as expressly permitted in writing including allow electronic by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Warranties

Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.

Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Course Sales Pty Ltd has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:

  • You are responsible for ensuring that You have the right to do so;

  • You are responsible for authorising any person who is given access to information or Data, and you agree that Course Sales Pty Ltd has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

  • You will indemnify Course Sales Pty Ltd against any claims or loss relating to:

    • Course Sales Pty Ltd's refusal to provide any person access to Your information or Data in accordance with these Terms,
    • Course Sales Pty Ltd’s making available information or Data to any person with Your authorisation.
    • The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.

Course Sales Pty Ltd does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Course Sales Pty Ltd is not in any way responsible for any such interference or prevention of Your access or use of the Services.

It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.

Course Sales Pty Ltd gives no warranty about the Services. Without limiting the foregoing, Course Sales Pty Ltd does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

Customer's trademarks

You agree that Course Sales Pty Ltd may use the Your logo, name and trade marks in connection with Course Sales Pty Ltd's advertising and marketing materials but only in accordance with the clause below.

Course Sales Pty Ltd shall submit all advertising and marketing materials which incorporate Your logo, name and/or trade marks to You before publication. You shall have a period of seven (7) business days commencing on the date on which Course Sales Pty Ltd sends the materials in which to notify Course Sales Pty Ltd as to whether You approve or disapprove of the materials, such approval is not to be unreasonably withheld or delayed. If You do not communicate its approval or disapproval to Course Sales Pty Ltd within such seven day period, You shall be deemed to have approved the materials.

Limitation of liability

Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT IN THE FORM OF CREDITS TO PAY FOR ANY LICENSE OF COURSE SALES PTY LTD. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

You hereby undertake and agree to indemnify Course Sales Pty Ltd and keep it fully indemnified from and against any costs, losses, damages, expenses and/or liabilities (including without limitation any legal fees and expenses) which may be suffered or incurred by Course Sales Pty Ltd arising out of or in connection with (i) any claims, proceedings, demands or actions by third parties arising out of or in connection with Course Sales Pty Ltd's supply of and/or Your use of the Service (including without limitation claims under any data protection acts or legislation) and/or any breach of Your undertakings or obligations set out in this Agreement, and/or (ii) any breach by You of its obligations under this Agreement, and/or (iii) Your negligence or wilful misconduct.

Configuration of the system. Course Sales Pty Ltd may assist you, configure in advance, or suggest configuration changes to the software, in this event no liability will be borne by Course Sales Pty Ltd in the event that the configuration in use, completed or proposed by Course Sales Pty Ltd does not meet your needs, pass the scrutiny of auditors, or delivery to your requirements for what ever reason. It is completely Your responsibility to ensure that any interim, final or subsequent configuration meets your needs.

Intellectual property

Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

Ownership of Data. Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Course Sales Pty Ltd license fee when due. You grant Course Sales Pty Ltd a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.

Backup of Data. You must maintain copies of all Data inputted into the Service. Course Sales Pty Ltd adheres to its reasonable endeavours policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Course Sales Pty Ltd expressly excludes liability for any loss of Data no matter how caused.

Termination

Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.

Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. (ii) you fail to pay invoices owed.

Refund or Payment upon Termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

Breach. If You:

  • breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

  • breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of payment of Access Fees that are more than 30 days overdue); or

  • You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,

Course Sales Pty Ltd may take any or all of the following actions, at its sole discretion:

  • Terminate this Agreement and Your use of the Services and the Website;

  • Suspend for any definite or indefinite period of time, Your use of the Services and the Website;

  • Take either of the actions above in respect of any or all other persons whom You have authorised to have access to Your information or Data; or

  • Suspend or terminate access to all or any Data.

For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organisations is not made in full by the relevant due date, Course Sales Pty Ltd may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of access to all or any Data.

Recovery of monies owed. In the event that you are in default of payment of your account, you shall, in addition to the amount outstanding, also be liable for the administrative costs incurred by us in administering and funding the default as a liquidated debt, together with all legal costs incurred by us on a full indemnity basis. Our Administrative costs are AUD$15 per month that the account is overdue. Overdue accounts will be subject to interest at the rate of 13% p.a., calculated for the period the account is due until the date it is paid.

Who you are dealing with, notices governing law and jurisdiction

You are contracting with Course Sales Pty Ltd Pty Ltd, notices should be sent to the registered company address, the governing law is Australia, the court that has exclusive jurisdiction is Australia.

Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.

Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

General matters

Entire agreement. These Terms, together with the Course Sales Pty Ltd Privacy Policy and the terms of any other notices or instructions given to You under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Course Sales Pty Ltd relating to the Services and the other matters dealt with in these Terms.

Waiver. If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

Delays. Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

No Assignment. You may not assign or transfer any rights to any other person without Course Sales Pty Ltd's prior written consent.

Severability. If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.

Notices. Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Course Sales Pty Ltd must be sent to support@CourseSales.com or to any other email address notified by email to You by Course Sales Pty Ltd. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.

Rights of Third Parties. A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.

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