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USER TERMS OF USE
A.R Cox & M.E Cox T/A Brainy Gecko ABN 61 273 567 495
INTRODUCTION
A. This End User Licence Agreement & Terms of Use constitutes a legally binding agreement (“Agreement”) between you as a User and A.R Cox & M.E Cox T/A Brainy Gecko ABN 61 273 567 495 which governs your use of the Platform and Content.
B. The Platform and Content may from time to time be accessed through a third-party platform hosted by The Essential Academy. By subscribing to, accessing, downloading and using the Platform, you warrant your acceptance of and agree to be bound by the terms and conditions of this Agreement as set out below and the terms and conditions of The Essential Academy available at https://www.essentialacademy.org/terms. Where a conflict arises between this Agreement and the terms and conditions of The Essential Academy, the terms and conditions of The Essential Academy will take precedence.
C. If you do not accept the terms of this Agreement you are not authorised to use the Platform.
OPERATIVE PART
1. Meaning of words
In this agreement:
(a) Brainy Gecko, we, us and our refer to A.R Cox & M.E Cox T/A Brainy Gecko ABN 61 273 567 and any of its related bodies corporate to which this agreement applies;
(b) Business Days means business days in Western Australia, Australia;
(c) Commencement Date means the date of first use of the Platform;
(d) “Confidential Information” means: (i) any information which is by its nature confidential, regardless of the form or medium of that information; and
(ii) any other information relating to the business, computer systems or affairs of the Recipient, the Recipient’s Affiliates, or their customers (including personal information), including designs, proposals, contracts, financial details, marketing strategies, policies, products, services, processes, operating practices and procedures, business plans, reports, plans and documents, which is or has been disclosed (whether orally, electronically, in writing or otherwise), or otherwise obtained by the Service Provider,
but excludes information which:
(i) was in the public domain at the time of its receipt by the Service Provider; or
(ii) became part of the public domain after its receipt by the Recipient, otherwise than through a disclosure by the Service Provider, or any person to whom it has disclosed Confidential Information.
(e) Content refers to all information and content within, accessed through and generated by the Platform;
(f) Intellectual Property means, whether registered or not, all copyright, designs and industrial designs, circuit layouts, trademarks, service marks and commercial names and designations, trade secrets, know-how confidential information, patents, invention and discoveries, literary artistic and scientific works, inventions in all fields of human endeavour, and other results of
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intellectual activity in the industrial, commercial, scientific, literary or artistic fields; (g) Notice includes a disclaimer, a disclosure or other statement and a consent provided in writing;
(h) Platform means the platform licensed, developed and amended from time to time by A.R Cox & M.E Cox T/A Brainy Gecko ABN 61 273 567 and includes the architecture, source code and related technologies associated with or forming part of the platform, as licenced and distributed by us;
(i) related body corporate has the meaning given in the Corporations Act 2001 (Cth);
(j) User and you means you the end-user of the Platform;
(k) website refers to https://www.brainygecko.com/ and any variation or tailored version of the website created for your use; and
(l) the singular includes the plural and vice versa.
2. Licence to use the Platform
(a) In accordance with this Agreement, we grant you a limited, non-exclusive, non-transferable licence to access, download and use the Platform and Content.
(b) The licence granted under clause 2(a): (i) is granted until such time as this Agreement is terminated;
(ii) does not include any right to sublicense the Platform; and
(iii) is subject to your compliance with the terms of this Agreement.
(c) If you do not accept all of the terms of this Agreement you are not authorised to use the Platform.
3. User obligations
(a) You are responsible for your use of the Platform. This includes but is not limited to: (i) maintaining the security of user names and passwords required for use of the Platform; and
(ii) maintaining adequate security measures to prevent unauthorised or inappropriate use of the Platform.
(b) You acknowledge that you have relied on your own skill, knowledge, experience and judgement to verify that the Platform meets your requirements and that you are not relying on any implied warranty of fitness for your needs.
(c) You acknowledge that you are not an agent, employee or assignee of Brainy Gecko.
4. Confidentiality and Privacy
(a) All parties agree to take all reasonable measures to ensure the Confidential Information of all users and third-parties is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to such information.
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(b) Clause 4 extends to cover any Confidential Information transmitted via any third-party communication software employed or established by Brainy Gecko.
5. User accounts
(a) To access and use the Platform, you will need to use the account login details provided by us. You will then be able to log in to the Platform via an Internet Browser, or by downloading the Platform onto a device.
(b) You are responsible for maintaining the security and confidentiality of any usernames and password used by you in relation to the Platform.
(c) You are responsible for any and all activities that occur under your User account. You agree to notify us immediately of any unauthorised use of your account or any other breach of security by you.
(d) We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be held liable for losses incurred by us or by another party due to someone else using your account or password.
(e) We may block your account without notice if we believe there has been a breach of this Agreement.
(f) You may not use anyone else’s account at any time, nor assign or transfer your account to any other person without the written permission of Brainy Gecko.
(g) You agree to maintain and update your user information, data and password as required to keep it accurate, current, and complete.
(h) You agree that we may store and use the information and data you provide us. All personal information will be held and used in accordance with our Privacy Policy (https://www.brainygecko.com/privacy-policy/).
(i) You acknowledge and agree that we may establish general practices and limits for the use of the Platform, including without limitation: (i) the maximum number of days that content will be retained;
(ii) the maximum disk space that will be allotted on our servers on your behalf; and
(iii) the maximum number of times (and the maximum duration for which) you may access the Platform in a given period of time; and
(j) You agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted by or via the Platform.
6. Platform updates and modifications
(a) We do not make any warranty that we will release updates, service packs, patches or hot fixes in relation to any defects in the Platform. Any updates to the Platform will be made at our sole discretion.
(b) We may modify the Platform at any time in accordance with our normal maintenance and update release process, and if you are dissatisfied with a modification your sole remedy will be to cease using the Platform.
7. Limitation of liability
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(a) To the extent permitted by law, we exclude the application of all terms, conditions, warranties and representations express or implied by statute or otherwise.
(b) To the maximum extent permitted by law we do not warrant that the Platform or Content is free from defects or that it will perform in compliance with any specifications, laws or your requirements. We do not guarantee uninterrupted access to and use of the Platform and Content at all times.
(c) Neither we, nor any of our employees, agents or officers are liable to you for any direct or indirect loss, harm or liability, or any costs, charges or expenses you or a third party may incur in connection with or arising from us providing the Platform or Content or your undertaking of the Tasks including but not limited to any interruption, inaccuracy, error, or omission, regardless of cause.
(d) This limitation exists whether your claim would otherwise arise in contract, under the law of torts (including negligence), by statute or otherwise.
(e) Our liability for a breach of a condition or warranty implied by law or otherwise, and which cannot be excluded, is limited to the extent possible, at our option, to: (i) correcting and resupplying the Platform or Content; or
(ii) supplying a workaround for defects in the Platform.
8. Indemnity
(a) You agree to indemnify, and hold us harmless from any claims, actions, damages or demands relating to or arising out of your use of the Platform or Content including: (i) the use or misuse of the Platform by you;
(ii) any violation of this Agreement by you;
(iii) any violation of third party rights by you; and
(iv) any unlawful, wilful or negligent act or omission by you.
9. Platform security
(a) We do not guarantee that information or media transmitted over the internet and/or through the Platform is totally secure. Therefore, when you use the Platform or Content or provide any information through the Platform you do so at your own risk. We take reasonable steps to keep all data and information secure while it is in our own systems but we do not guarantee that it is secure.
(b) Your use of our Platform and Content is at your own risk. We do not guarantee that our Platform is free from viruses, or that access to our Platform will be uninterrupted.
10. Information about you & your privacy
(a) When you download and use our Platform, we may collect personal information about you. Ordinarily, we tell you the purposes for which we collect that information when it is collected. As a general rule, we only collect such information which is necessary for us to provide our product to you or to maintain our relationship with you.
(b) Our Privacy Policy (www.brainygecko.com/privacy-policy/) sets out how we collect and deal with personal information generally, including our use of
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cookies on your device(s). Our Privacy Policy forms part of this Agreement, and if inconsistent with this Agreement, this Agreement will take precedence. (c) By downloading, installing and using the Platform you acknowledge and agree with our Privacy Policy, and consent for us to collect and disclose your personal information as necessary to provide the Platform and our products and services to you.
11. Third party websites
(a) The Platform may contain links to other products and services of third parties. We do not endorse or otherwise approve the owners or operators of the third party business, third party website, or the information, graphics and material on those websites or the goods or services (including Platform) offered on those websites.
(b) To the extent permitted by law, we are not responsible or liable for, and give no warranty in respect of, any third party website, application or the goods and services (including Platform) offered by a third party or any information appearing in any product or service we may offer.
(c) We may receive payments from third parties in relation to goods or services supplied or received as a result of users and third parties accessing third party services or any links to third party applications or websites contained in our Platform or website.
(d) Third party applications and websites are not subject to our privacy standards so you should review the privacy policy and any other relevant notice that appears on a third party application or website.
12. Intellectual Property
(a) You acknowledge all Content and Intellectual Property held, located within and related to our Platform and Content is the property of Brainy Gecko and its related bodies corporate and protected by Intellectual Property law. Nothing in this Agreement conveys or vests to you any interests or ownership in such Content or Intellectual Property.
(b) Any improvements, suggestions, ideas, enhancement requests, feedback, recommendations, templates, libraries or other software or information you provide to or jointly develop with Brainy Gecko shall belong solely to Brainy Gecko.
(c) Other than for the purposes and subject to the conditions prescribed under the Copyright Act 1968 (Cth), you must not reproduce, upload to a third party, link to, frame, store in a retrieval system or transmit any part of the Platform or Content without our prior written consent.
(d) Our Platform and Intellectual Property includes trade marks owned by us (or our related bodies corporate). You must not use any of these trade marks in any way without our prior written consent.
(e) You must not, without our prior written consent, redistribute or resell the Platform or Content or the Intellectual Property in the Platform or Content.
(f) You agree that you will not do or cause to be done any act or thing that may impair any of Brainy Gecko’s Intellectual Property rights in connection with the Platform or Content.
(g) You agree that you must not: (i) copy, sell, market, license, sublicense, lend, loan, distribute, transmit, rent, lease, upload, post, electronically transfer or otherwise assign or transfer or directly or indirectly permit any third
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party to use, access, exploit or copy any part of the Platform or Content; (ii) copy ideas, features, functions or graphics of the Platform or Content for use in another product or service; or
(iii) incorporate or use the Platform or Content in whole or in part in any other Platform, service or product.
13. Permitted use and licence
(a) You agree not to use the Platform or Content: (i) for any purpose that is unlawful or prohibited by this Agreement;
(ii) in any manner that could damage, disable, overburden, or impair our server, or the network(s) connected to our server, or interfere with any other user or any other third-parties’ use and enjoyment of the Platform;
(iii) to attempt to gain unauthorised access to any service, other accounts, computer systems or networks connected to our server through hacking, password mining or any other means;
(iv) to attempt to obtain any materials or information through any means not intentionally made available through our Platform;
(v) to offer or provide a commercial bureau or application service provider service;
(vi) to transmit or otherwise make available any content or media that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(vii) to impersonate any person or entity;
(viii) to transmit or otherwise make available any content that you do not have a right to make available under any law or which infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(ix) to transmit or otherwise make available any unsolicited or unauthorised advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation unless expressly authorised to do so;
(x) to stalk or otherwise harass another user or third-party; or
(xi) to collect or store personal data about other users.
(b) You agree to not: (i) modify, customise, reverse engineer or disassemble the Platform;
(ii) input or store materials into or in the Platform containing Platform viruses, worms, trojan horses or other harmful computer code, files scripts, agents or programs;
(iii) interfere with or disrupt the integrity or performance of the Platform; or
(iv) circumvent, alter or modify disabling mechanisms which may be resident in the Platform or mechanisms that control access to use of the Platform.
(c) We have the right (but not the obligation) in our sole discretion to: (i) refuse the transmission of any Content via the Platform;
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(ii) refuse access to or use of the Platform;
(iii) move any Content that is available via the Platform;
(iv) to remove any Content that violates this Agreement or is otherwise deemed by us to be objectionable; and
(v) preserve or disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any content violates the rights of third-parties; or (d) protect our rights, property or the personal safety of our staff, other users and the public.
(d) As a condition of your use of our Platform, you authorise us to include you in our published list of users.
14. Termination and modification of Platform
(a) We may in our sole discretion immediately suspend, terminate this Agreement or limit your access to the Platform or Content if: (i) we deem that you are in breach of this Agreement or our Privacy Policy;
(ii) we deem that your use of the Platform is low and warrants termination of your access; or
(iii) any licence we may hold or require to licence and distribute the Platform is terminated for any reason.
(b) We may, but are not obligated to, notify you of such suspension, termination or limitation by email within five (5) business days. You agree that we will not be liable to you or any third-party for any termination of your access to the Platform or Content.
(c) We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform or Content (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Platform, Content or our related services.
15. Notice
Brainy Gecko may give Notice under this Agreement by means of notice on the Platform, on our website, or by email.
16. Jurisdiction, severability and waiver
(a) The information in our Platform and this Agreement have been prepared in accordance with the laws of the Western Australia and the Commonwealth of Australia. The Platform may not comply with the laws of any other State or country.
(b) The terms and conditions of this Agreement will be interpretted in accordance with the laws in force in the State of Western Australia, and we both agree to submit to the non-exclusive jurisdiction of the courts of Western Australia.
(c) If any provisions of this Agreement become void, voidable or unenforceable then those provisions are deemed to be severed and the remaining provisions will continue to have full force and effect.
(d) Any failure or delay by Brainy Gecko in exercising any right, power or privilege available to us will not operate as a waiver of that power or right.
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17. Changes to this Agreement
(a) This statement sets out our current End User Licence Agreement for our Platform. It replaces any other Licence Agreement which we have previously issued.
(b) We may amend this Agreement at any time. If we do, we will inform you of any update by way of email or a post on our website. By accepting this Agreement, you agree that our publishing of an amended version will be sufficient notice of any changes and that your subsequent access to, viewing, reliance on or other use of the Platform will constitute your acceptance of those amendments.
(c) We suggest you periodically review our website for any changes.
(d) All information within the Platform is subject to change without notice.
18. Contacting us
If you have any questions regarding this Agreement please contact us at alan@brainygecko.com.