ecoaches online pty ltd acn 604 142 323 (company) provides the ecoaches web & mobile training marketplace (ecoaches) that allows users to advertise, sell and purchase private training sessions and other learning resources.
1.1 KEY DEFINITIONS
The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
Agreement means these Terms of Service.
Booking means a booking for a Session or Course.
Booking Reservation means a notification sent to a Student reserving a time for a Booking in eCoaches pending payment.
Coach means a user that holds a Coach Account in eCoaches.
Company means eCoaches Online Pty Ltd ACN 604 142 323.
Course means a course consisting of more than one Session.
eCoaches means the:
Web application accessible from https://www.ecoaches.com; and/or
The eCoaches mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
Fee means any fee payable by a User for access to, or use of eCoaches.
Learning Resource means any good made available for purchase by a Coach.
Listing means a page within eCoaches, created and managed by a Coach in order to promote and sell a Session, Course or Learning Resource.
Nominee means a person nominated by a Student, or additional attendee paid for by a Student to attend a Session or Course.
Order means a purchase order for a Learning Resource.
Rating means a rating of a Coach’s performance as determined by a Student that has purchased a Session or Learning Resource from the Coach, and includes an aggregate of such ratings where implied by context.
Refundable Issue has the meaning set out in item F.1.
Session means a live teaching session conducted by a Coach for a Student, whether conducted in person, over telephone, video-conference, live-chat or other analogous means of communication.
Site means the website operated by the Company accessible at https://www.ecoaches.com.
Student means a user that holds a Student account.
Third Party means any person that is not a User.
Training Product is the collective term used for Session, Course or Learning Resource.
User means any Student or Coach that uses eCoaches.
Students (Item C)
Coaches (Item H)
In addition to any other express or implied consents, by using eCoaches the User accepts and agrees to the terms of:
This Agreement; and
The Company provides eCoaches as a marketplace service that allows Coaches and Students to contract with each other for the purchase of Training Products.
The terms of the agreement between each Coach and Student shall be determined in accordance with the terms of a Listing and any other terms agreed between the Coach and Student.
The Company accepts no responsibility for the terms of any agreement between a Coach and a Student.
In addition to the terms of this Agreement, Coaches may provide Training Products to Students in accordance with their own terms for business. In the event of any conflict between the Coach’s terms of business, and this Agreement, this Agreement will take precedence.
Notwithstanding any other provision of this Agreement, any dispute that may arise between Users must be dealt with between those Users.
All information about a User is used and controlled by the relevant Student or Coach, not eCoaches;
Each Coach is responsible for each Listing that it creates, including (but not limited to):
The accuracy of the information about the Training Product;
The fitness for purpose of each Training Product offered;
The Coach’s availability for Bookings;
The price payable for each Training Product.
The Coach may edit the Listing at any time, including with regard to price.
eCoaches allows Students to rate their experience interacting with each Coach. The rating provided by the Student does not represent the opinion of the Company, and the Company accepts no responsibility for any consequences that a Rating may cause a Coach.
A Student must not make a Rating for a Coach that:
The Student has had no interaction with via eCoaches;
Does not fairly represent the value the Student received, or quality of experience the Student had with the Coach;
Is intended to mislead other Users with regard to the Coach’s reputation; or
Would constitute defamation of the Coach.
Each Coach accepts that Ratings are the opinions of the relevant Student and are not subject to review.
Interacting with other Users.
The User acknowledges that they use eCoaches at their own risk.
The Company makes no representation as to the credentials or character of any User of eCoaches.
The User must exercise the utmost caution before providing any information capable of personally identifying them to another User.
If a User chooses to meet another User in person, they do so at their own risk. The Company recommends taking all reasonable precautions to protect their safety prior to meeting another User in person.
The Company accepts no responsibility for the conduct of any User of eCoaches.
The Company accepts no responsibility for any interaction between Users, whether that interaction occurs via eCoaches or not (including a personal meeting).
Lodging a Complaint.
If you believe that another User’s behaviour is threatening, discriminatory, or deliberately offensive you may lodge a complaint to the Company via email at email@example.com.
The Company may suspend or remove the account of any User that the Company determines conduct themselves inappropriately.
The Company’s decision whether or not to suspend or remove an account is at its absolute discretion. The Company’s decision shall be final and not subject to review.
A Coach may make a Booking available either by:
Pre-allocated Booking time (Pre-allocated Time); or
Arranging a time via communication with the Student (Arranged Time).
The Coach is responsible for ensuring it keeps its availability for Pre-allocated Times up to date and accurate on eCoaches.
Once a Student and Coach agree to an Arranged Time, the Coach shall send the Student a Booking Reservation.
The Coach must perform the services associated with a Booking, once the Student has made payment.
The Student is responsible for ensuring that the Student, or their Nominee, attends the Booking.
Notwithstanding any terms of agreement between a Coach and a Student, if either a Coach or Student is unable to attend a Booking, they must notify the other no less than 24 hours prior to the time the Session was due to take place.
If a Booking does not take place at the confirmed time, the parties must arrange an alternative time for the Booking to take place.
The Company accepts no responsibility for any Booking that does not take place.
TERMS OF SALE
Payment for Bookings and Orders
An order to purchase a Learning Resource (Order) is not confirmed until the Student completes payment via eCoaches.
A Booking is not confirmed until the Student makes payment either against;
The Pre-allocated Time; or
The Booking Reservation.
Payments must be made by credit card, or as otherwise specified on the Site using the eCoaches payment gateway.
The Company may take a Fee from the payment in consideration for facilitating the transaction prior to forwarding the balance of the payment to the Coach.
The amount of any applicable Fee deducted shall be in accordance with the rates advertised on the Company’s website from time-to-time.
The Company will pay the balance of any payment to the Coach on a monthly basis.
The Coach must include the following costs in the value of any payment it agrees to with a Student for Training Products, including:
Shipping Costs (Orders only);
GST (if applicable);
The value of any Fee; and
Any other duty or tariff that may apply to the transaction.
The Company will provide:
The Student with a Tax Invoice for its payment; and
The Coach with a recipient created Tax Invoice for each payment it makes to the Coach if they are GST registered; or
The Coach with a Transaction Statement for each payment it makes to the Coach if they are not GST registered.
All Fees are quoted in US dollars, however transactions may be processed in an equivalent foreign currency (such as Australian dollars or British pounds).
Transactions processed in other currencies may attract conversions fees, transaction fees or other bank fees, which must be paid for by the User.
The terms for shipping any Orders shall be in accordance with a Listing, or as otherwise agreed between the Student and the Coach.
The Student is responsible for providing the Coach with the correct shipping address and any special instructions.
The Company recommends that Users ship goods using a registered and trackable shipping method. The Coach must provide a Student with any tracking details that may apply to the Order.
The Coach shall remain responsible for the shipment of any goods until a Student receives them.
The Student shall assume all risk in the Learning Resources at the time that they arrive at the Student’s address for delivery.
The Company makes no warranty or representation as to the quality, safety or fitness for purpose of any Training Product.
The Company takes no responsibility for any harm or loss suffered by a Student as a result of using any Training Product. If a customer suffers loss or harm as a result of any Training Product purchased from another user via eCoaches, the Student agrees that:
The Student shall have no recourse against the Company; and
The relevant Coach remains responsible for any such loss or harm under Australian Consumer Law.
No Inappropriate Training Products.
All Training Products made available for or promoted via eCoaches must be educational and informative in nature, or related to the skill or field of knowledge that the Coach practices. The Company may remove any Training Product that it determines does not meet these criteria in its sole discretion.
No User may make available for sale, or advertise any Training Product that the Company in its sole discretion determines is inappropriate or offensive.
The Company may remove any content that suggests that a user is selling or seeking to purchase a Training Product that the Company determines is inappropriate.
The Company may suspend or delete the account of any User that breaches this item.
Dispute Resolution. In addition to the dispute resolution provisions contained in clause 17 of the General Conditions:
A Student that receives an unsatisfactory Training Product must notify the Coach within 7 days of receiving the Learning Resource, attending the Session, or the time a cancelled Session was due to occur.
Any dispute that arises in relation to a Training Product must be resolved between the Student and the relevant Coach in accordance with the terms of agreement between the Student and the Coach, and in accordance with Australian Consumer Law (if applicable).
The Company reserves the right to suspend a Coach’s account if the Company receives a complaint about a Coach.
The Company may reinstate a suspended account at its sole discretion.
Any purchase of a Training Product that occurs as a result of the Training Product being advertised on eCoaches, or otherwise negotiated via eCoaches, must be paid for via eCoaches.
In no circumstance may Users arrange for payment by any means other than using eCoaches’s payment gateway.
Failure to conduct payment via eCoaches shall be a breach of these Terms of Service and may result in the Company suspending or deleting the relevant Users’ accounts.
A Student may request a refund if any of the following refundable issues (Refundable Issue) occur:
The Coach cancels a Booking shortly before the scheduled start of the Session;
The Learning Resource was damaged, dangerous, not fit-for-purpose or otherwise not of merchantable quality; or
The Student determines whether before or after commencement of the Session, that the Coach is unqualified or unfit to instruct the Session, or otherwise fails to meet the minimum standards set out in this Agreement.
The Student Refund and Rescheduling Policy.
A Student that suffers a Refundable Issue may apply to the Company for a refund.
The Company may reimburse the Student the amount paid by the Student through eCoaches, provided that the Company determines in its discretion that a Refundable Issue has occurred.
Rather than accepting the payment of a refund, a Student may elect for the Company to hold the amount of any refund on account, which may then be applied to the value of a subsequent Booking by the Student.
Conditions to Claim a Refundable Issue. Only a Student may submit a claim for a Refundable Issue. In order to submit a valid claim for a Refundable Issue and receive the benefits with respect to their booking, the Student is required to meet each of the following conditions:
The Student must bring the Refundable Issue to the Company’s attention in writing, and provide the Company with information about the circumstances of the Refundable Issue within:
7 days of the time the Session ended or was cancelled; or
7 days of the Student receiving the Learning Resource; or
21 days after an Order was confirmed but has not been received.
The Student must respond to any requests by the Company for additional information or cooperation on the Refundable Issue;
The Student must not have directly or indirectly caused the Refundable Issue (whether through action, omission or negligence).
Minimum Quality Standards, Coach Responsibilities and Reimbursement to Student.
The Coach is responsible for ensuring that Session they list on eCoaches meets the minimum safety and quality standards set out in this Agreement, and do not present a Student with Refundable Issues.
The Coach agrees to reimburse the Company up to the amount paid by the Company within 30 days of the Company’s request if:
The Company determines that a Student has suffered a Refundable Issue related to a Session listed by the Coach; and
The Company reimburses that Student any amount up to the amount paid by the Student through eCoaches for the Session.
All determinations of the Company with respect to a refund, including (without limitation) the size of any refund to the Student, shall be final and binding on the Student and Coach.
The Coach agrees that in order to reimburse the Company up to the amount paid by the Company, the Company may off-set or reduce any amounts owed by the Company to the Coach by this amount.
If the Student or Nominee attends the entire Session despite the Refundable Issue (whether the Session finishes early or not), the Student may be eligible for a refund of the entire amount depending on the Company’s determination.
The rights of the Students under this Agreement supersede any provisions of an agreement reached between the Coach and the Student with regards to the relevant Training Product.
If a Coach disputes the Refundable Issue the Coach may notify the Company in writing and provide the Company with information disputing the claims regarding the Refundable Issue.
The Company may take into account, the reasonable efforts made by a Coach to remedy or mitigate the Refundable Issue when reaching its determination.
Each User agrees that all determinations of the Company with respect to the Refundable Issue shall be final and binding on the Student and Coach regardless of their submission of a dispute against such Refundable Issue.
In the event of one or more Refundable Issues in relation to the same Coach, the Company, in its discretion, may elect to take additional actions. These actions may include, but are not limited to negatively affecting the Coach’s Rating, cancelling future Bookings, suspending or removing a Listing, or imposing penalties or fees for the administrative burden associated with the Refundable Issues.
Nothing in this item shall prohibit the Company from processing a refund or crediting a Student’s account if the Company determines that a Booking was cancelled via eCoaches, and a Session did not occur prior to a payment being forwarded to the Coach for a Booking.
The Coach shall not be entitled to a refund of any Fees from the Company that applied to the original payment.
No other refunds. No other refunds shall be offered by the company except in accordance with this clause, or as required by law.
eCoaches may enable Students to:
Create and manage a Student Account;
Communicate with Coaches;
Make a Booking;
Purchase Learning Resources;
Make payment for Sessions and learning Resources.
The Student agrees and accepts that:
It is the Student’s responsibility to follow the instructions of each Coach and correctly perform any activities instructed by the Coach.
Any claim based on injury, illness, death or damage to property that results from a Student’s use of eCoaches must be directed to the relevant Coach.
The Student indemnifies eCoaches against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Student’s participation in a Session, or use of a Learning Resource;
eCoaches may send the Student emails, text messages, push notifications and other alerts on behalf of Coaches;
Any consent made by a Student through eCoaches is valid and binding unless and until revoked by the Student, and a Coach may rely on a consent made through eCoaches without any need to further verify the veracity of that consent;
All information supplied to eCoaches about a Student is provided with that Student’s consent;
The Student remains responsible for any Nominee that attends a Booking made by the Student, and must ensure the Nominee’s compliance with this Agreement.
eCoaches may enable a Coach to:
Create and manage a Coach Account;
Create and manage a Listing for a Training Product;
Accept Bookings for Sessions;
Communicate with Students;
Take payment for Training Products.
The Coach agrees and warrants that:
To the extent permitted by law the Coach indemnifies and will hold eCoaches harmless against all costs, claims damages and expenses for:
Any Penalty imposed upon the Coach;
Any Learning Resource being dangerous, faulty, of insufficient quality, not being fit-for-purpose or otherwise not as described on a Listing;
Any Injury, illness or death caused to a Student, Nominee or Third Party;
The Coach being unqualified, or insufficiently experienced to instruct a Session;
Any Damage to the property of any Student, Nominee or Third Party;
Claim of infringement of intellectual property rights made by a Third Party;
Any information the Coach provided to the Company that is found to be misleading.
Claim of breach of confidentiality by any Third Party; As a result of the Coach’s use of eCoaches;
It shall not disclose any information about a Student to any person or party other than as authorised by the Student;
It shall ensure all personal information it has access to through its use of eCoaches is kept and used in accordance with applicable privacy laws in the jurisdiction;
It shall only use eCoaches for its intended purpose as set out in this Agreement;
It shall comply with all anti-SPAM legislation in its jurisdiction; and
It grants eCoaches a royalty free licence to use any logos in any form, media or technology for the purpose of promoting or marketing eCoaches.
Any person who registers a Coach in eCoaches warrants he or she is an authorised representative of that Coach, with the requisite authority to bind the Coach to this Agreement.
The Company may make additional features and benefits available to Coaches that take part in a VIP Program.
The Company may set the criteria for application for, and acceptance into a VIP program at its absolute discretion.
The Company may change the features and benefits associated with a VIP program at its absolute discretion.
A Coach’s inclusion in a VIP program is completely at the Company’s discretion.
The User agrees that when it provides any consent, authority or agreement through eCoaches it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
The User agrees that any request for a consent, authority or agreement it sends to other Users through eCoaches as an electronic transaction shall be sent directly from its email address.
The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.
The Company does not guarantee the validity of any electronic transaction.
TERM & LIMITATIONS
The User’s licence to access eCoaches shall be ongoing until terminated in accordance with this Agreement.
Limitations on Use.
The Company may limit or restrict access to eCoaches from time-to-time as it sees fit, including (but not limited to):
Entities. The Company may restrict access only to qualified, reputable and/or registered Coaches; and
Location. The Company may restrict access to eCoaches to certain jurisdictions where it is able to offer eCoaches.
The User must re gister an account in eCoaches to use eCoaches.
The Company may set any registration requirements in its absolute discretion.
The Company will keep confidential all information that it becomes aware of regarding the User’s:
Business, employees and contractors.
This Agreement may be terminated at any time by:
Written notice of one party to the other; or
By cancelling or otherwise terminating your account through eCoaches.
Deleting eCoaches does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that eCoaches has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
The User agrees and accepts that deletion of eCoaches may result in loss of data for which the Company is in no way liable.
DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
The User acknowledges that eCoaches:
Is dependent on third-party services, including but not limited to:
Banks, credit card providers, BPAY;
Email services; and
Provides links to third party websites containing (without limitation) personal information.
The User agrees that the Company shall not be responsible or liable in any way for:
Interruptions to the availability of eCoaches due to third-party services; or
Information contained on any linked third party website.
Governing Law. South Australia, Australia
Reference City. Adelaide.
The User wishes to access eCoaches provided by The Company.
The terms and conditions in this Agreement govern the provision of eCoaches to the User by the Company.
The following definitions apply in this document:
ACN means Australian Company Number.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item P of the Important Terms.
Corporations Act means the Corporations Act 2001 (Cth).
Fees mean the fees and charges as set out in the Important Terms.
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
Moral Rights means:
Moral rights pursuant to the Copyright Act 1968 (Cth);
Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
Privacy Act means the Privacy Act 1989 (Cth).
Solution means the eCoaches solution described in the Important Terms.
Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
User Content means data that is uploaded or input into eCoaches by the User or that forms part of the User’s Intellectual Property.
Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
The singular includes the plural and the opposite also applies.
If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
A reference to a clause refers to clauses in this Agreement.
A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
APPLICATION OF THIS AGREEMENT
This Agreement applies to use of and access to eCoaches.
Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using eCoaches.
This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of eCoaches at the User’s next login after the User receives written notice of the update(s).
THE ECOACHES PRODUCT
eCoaches is the product described in the Important Terms.
eCoaches is only accessible to the User for the term set out in the Important Terms.
The User agrees and accepts that eCoaches is:
Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to eCoaches is available to the User unless expressly agreed in writing.
As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter eCoaches.
The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of eCoaches to the User, other than in accordance with the terms of this Agreement.
By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use eCoaches for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
The User agrees that it shall only use eCoaches for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
The User shall authorise users to access eCoaches in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
The User is solely responsible for the security of its username and password for access to eCoaches.
The User shall notify the Company as soon as it becomes aware of any unauthorised access of its eCoaches account.
The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
Despite clause 8.1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for eCoaches).
The Company makes no warranty as to the suitability of eCoaches in regards to the Coach’s privacy obligations at law or contract, and it is the Coach’s responsibility to determine whether eCoaches is appropriate for the Coach’s circumstances.
The Company may deduct a Fee from payments made for purchases of Training Products.
The terms of payment set out in the Particulars shall apply.
Where the Company:
Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then
The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.
All transactions are processed in US dollars and conversion rates may apply for foreign currencies.
GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
No refunds of Fees are offered other than as specified in this Agreement or as required by law.
NVOICING & PAYMENTS
The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
The terms of payment set out in the Fees shall apply.
Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
Security. The Company takes the security of eCoaches and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
Storage. The Company may limit the amount of data that the User stores in eCoaches, and shall advise the User of such. Data that is stored with eCoaches shall be stored according to accepted industry standards.
Backup. The Company shall perform backups of eCoaches in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
By accepting the terms of this Agreement the User agrees that the Company shall provide access to eCoaches to the best of its abilities, however:
Access to eCoaches may be prevented by issues outside of its control; and
It accepts no responsibility for ongoing access to eCoaches.
Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of eCoaches.
The eCoaches Application. The User agrees and accepts that eCoaches is the Intellectual Property of the Company and the User further warrants that by using eCoaches the User will not:
Copy eCoaches or the services that it provides for the User’s own commercial purposes; and
Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in eCoaches or any documentation associated with it.
Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to eCoaches.
LIABILITY & INDEMNITY
The User agrees that it uses eCoaches at its own risk.
The User acknowledges that eCoaches does not sell Training Products on its own behalf.
The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with eCoaches, including any breach by the User of these Terms.
In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use eCoaches or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
The re-supply of services or payment of the cost of re-supply of services; or
The replacement or repair of goods or payment of the cost of replacement or repair.
Expiry or termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
The rights and obligations under the relevant provisions of clauses 7, 9, 10, 11, 14, 15, 16, 17, 18 and 18.6 survive termination of this Agreement.
All disputes shall be handled in accordance with the Company’s dispute resolution policy.
Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 17.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to the parties’ most recent known contact details.
The User may not assign or otherwise create an interest in this Agreement.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Governing Law. This Agreement is governed by the laws of the state set out in item P of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.