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WEBSITE AND USER T&Cs AND CONDITIONS
ArchiStar provides an online education platform providing training in software designed for use in the digital design industry.
These T&Cs and conditions ("T&Cs) govern the access and use of this Website, the Membership and the ArchiStar Platform.
In these T&Cs, unless the context requires another meaning:
"Administrator"means the person or persons nominated by the Customer to have administrator access to the ArchiStar Platform having the rights and obligations set out in these T&Cs.
"Authorised User"means a person who is part of the Community of the Customer (as described in these T&Cs) who has been granted access to the ArchiStar Platform by the Administrator.
"Business Day"means a day (other than a Saturday, Sunday or public huliday) on which the banks are open for general banking business in Sydney, Australia.
"Claim"includes in relation to a person, any claim in respect of any damage, loss, cost, expense or liability incurred by the person or a claim, demand, action, proceeding or judgment made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.
"Community"means those people who are involved as staff, student, member or is otherwise engaged with the Customer in respect of the services that the Customer delivers.
"Confidential Information"means any proprietary information or material belonging to the Customer or the ArchiStar, including, without limitation, all data and information relating to the Customer or the ArchiStar and their respective operations, facilities, personnel, positions advertised, assets, Services, clients, sales and transactions whether or not such information is provided to a party before or after the commencement of the Membership.
"Corporations Act"means the Corporations Act in Australia (as amended) and includes all acts and regulations encompassed thereby and any statutory, modification or predecessor or re-enactment thereof.
"Equipment"means all hardware and software from or through which the ArchiStar Platform may be accessed which may include, without limitation, computers, internet connection, online broadcast software or websites, offline software and access to various websites available on the world wide web.
"Group"means any identified group of Authorised Users as set up and maintained by the Customer.
"GST"means a goods and services tax, consumption tax, value-added tax, retail turnover tax or a tax of a similar nature.
"ArchiStar Platform"means the online education platform that Membership provides access to pursuant to these T&Cs.
"Intellectual Property"means all rights, whether registerable, registered or unregistered in any patent, trade mark, trade name, business name, company name, copyright, registered design or other design right or circuit layout right, or any applications for, or rights to obtain or acquire, any such rights.
"Membership"means the right to access the ArchiStar Platform for a specified period and, if appropriate, to allow access to other users pursuant to these T&Cs.
"Membership Fees"means those fees applicable to the Membership during the Term as described in these T&Cs.
"Reporting"means the online delivery of reports, on request, by the ArchiStar Platform on specific data including Testing results on an Authorised User or Group basis; platform logon details including Authorised User, time and date; status of completion of education modules on a per Authorised User basis; and such other features as are described in these T&Cs or otherwise notified to the Customer by ArchiStar.
"Services"means all services delivered by ArchiStar to the Customer including:
- 1) provision of online education modules including all the online materials and data available on the ArchiStar Platform;
- 2) Testing and Reporting services; and
- 3) Support Services.
"Support Services"means reasonable online support to assist the Customer or any Authorised User in the operation of or access to the ArchiStar Platform as described in these T&Cs.
"T&Cs"means these T&Cs including any update or amendment to same from time to time.
"Term"means a fixed 12 month term for the provision of the Membership subject to these T&Cs which term will automatically rollover at the completion of each 12 month period unless terminated by the Customer or ArchiStar pursuant to these T&Cs.
"Testing"means the online examination of education modules or software training delivered within the ArchiStar Platform.
"Website"means the website www.academy.archistar.ai and its related pages, including the ArchiStar Platform and any mobile site or other application that we may offer.
2. USE OF WEBSITE
- Your access to, browsing, contributions to and use of this Website are subject to the following T&Cs as well as all applicable laws, rules and regulations. By accessing or using this Website you accept and agree to the T&Cs, which are legally binding.
- If you do not agree to any of the terms expressed in these T&Cs, you must not visit, use or continue to use the Website. We will, from time to time, revise and update the T&Cs and we will publish all such updates on our Website. All updated T&Cs become effective immediately upon being published on the Website.
- All content and all intellectual property which includes text, images, trade marks (registered or unregistered), graphics, photographs, designs, icons, logos and service marks ("Content") and the selection, arrangement and "look and feel" of all content contained on the Website, is the property of ArchiStar or third parties who have granted ArchiStar permission to use it on the Website.
- All Content contained on the Website whether past, present or future and is protected by national and international copyright, design and trade mark and other laws. Your right to use the Content is limited only to those rights expressly set out in the T&Cs.
4. USE AND REGISTRATION
- Certain services will only be available after you have registered your details and activated an account with us on the Website. To register your details and open an account with us, you will be required to submit your data and personal information.
- You warrant and agree that all information provided to us is accurate, true and up-to-date in all respects and at all times. You also agree to update your account with any changes to your personal information previously submitted as soon as practicable after such personal information changes.
- ArchiStar reserves the right in its sole discretion to refuse to register any account.
- If you breach any of these T&Cs, we will be entitled to lock or delete any and all accounts, and not accept any further or future account requests, by the account holder and their associates.
- You must not use another person's account without their express prior permission nor permit anyone to use your subscription or account.
- You are solely responsible for all activity that occurs using your account, and solely responsible to keep your access to it and your passwords secure. ArchiStar does not accept any responsibility for activity or purchases made using your account by unauthorised access of your account.
- If you suspect or become aware of any unauthorised use of your account or that your passwords are no longer secure, you must immediately notify ArchiStar and immediately take all reasonable steps to protect your account.
- When you notify ArchiStar of your account being accessed without your authority or your account or passwords not being secure, we will immediately lock and cancel your account to prevent any further misuse. We will allow you to register a new account only after we are satisfied, in our sole discretion, that you have taken all reasonable steps to ensure that your account and passwords will be kept secure in the future.
- You agree to release and indemnify ArchiStar from any loss or claim arising, whether directly or indirectly, from any unauthorised use of your account.
- You acknowledge that when you register and use the Website, you will receive correspondence from ArchiStar, including newsletters, relating to the Website and the business of ArchiStar.
- ArchiStar grants you a revocable limited non-exclusive licence to access, browse, use or contribute to the Website or the Content on your computer or similar device and download and use downloadable Content for the purpose of accessing and utilising the ArchiStar Platform or purchasing services or products from ArchiStar.
- Except as expressly permitted in these T&Cs or on the Website, or with ArchiStar's prior written permission, you are expressly prohibited from modifying, copying, downloading, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or otherwise using Content available via this Website for commercial or public purposes, including but not limited to use as meta tags or linking the Website or Content on other pages or sites on the world wide web.
- You must not damage, interfere with or disrupt access to the Website or the Content or engage in any other conduct that will or may restrict or limit any other person from using or accessing the Website or the Content. You agree not to, or attempt to, circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on the use of the Website or the Content within it.
- ArchiStar will hold you liable for any loss, damage or claims arising, directly or indirectly, from your interference with the Website, Content, security or access to the Website or Content or in any other way prevent the usual operation of the Website and its availability to the public.
LIMITED TIME TO USE
5. THIRD PARTY SITES
- ArchiStar selects third party partners and associates with care and with our customers' needs in mind. We aim to provide information and services from reputable third parties with quality products or services who will be able to fully deliver that information or those services to you.
- The Website may contain links to third party websites or content (Third Party Content). ArchiStar does not monitor, review or update, and does not have any control over, Third Party Content. Unless expressly stated otherwise, ArchiStar does not endorse or adopt Third Party Content and makes no representation, warranty or guarantee as to accuracy, completeness, timeliness or reliability of Third Party Content or the safety of any third party website.
- If you use the links contained on our Website to access Third Party Content you do so entirely at your own risk and liability. In addition, without limiting any other part of the T&Cs, reference to any products, services, processes or other information by name, trade mark, manufacturer, supplier or otherwise on or via the Website does not constitute or imply any endorsement, sponsorship or recommendation by ArchiStar.
6. NO WARRANTIES
- The Website and Content are provided "as is" without warranty of any kind, express or implied. Except to the extent required by the law, ArchiStar does not make any representations or warranties as to the Website, including but not limited to, warranties of merchantability and fitness for a particular purpose, title, non-infringement, security, informational content, system integration or accuracy and the express warranty of quiet enjoyment or as to the accuracy or suitability of information, descriptions, guidelines and images on the Website including culour, design and texture samples, descriptions of any materials or products, services, offers, merchants or any other information shown on the Website.
- ArchiStar does not represent or warrant that the Website or its server(s), applications or functionalities are free of viruses or other harmful components, and you bear the entire risk of losses or damages that you may incur or suffer as a result of any use of or visit to this Website. ArchiStar does not guarantee continuous, uninterrupted, error-free or secure access to the Website or its services, since the operation of the Website may be interfered with by numerous factors outside of ArchiStar's control.
- ArchiStar may offer purchase of Membership which provides access to the ArchiStar Platform subject to and pursuant to these T&Cs.
- Purchase of Membership is subject to any order requirements or instructions referred to on the Website or otherwise notified to you.
- The Membership includes:
- Administrator level access to nominated persons to the ArchiStar Platform;
- unlimited Authorised User access to the ArchiStar Platform;
- Testing and Reporting as described in these T&Cs and
- online support services during the Term.
- By applying for Membership, you warrant you are not a legal minor and you are over the age of 18 years and you have full and due capacity and authority to purchase the Membership.
- Once you have applied for Membership, you must make payment for the Membership in accordance with the payment methods specified or referred to on the Website or otherwise notified to you. Your Membership will only take effect after you have submitted the order and the full payment required on placing the order has been received.
- ArchiStar reserves the right to accept or reject your order for any reason including, the unavailability of any services or programs, an error in the price or description or any services or programs or any error in your order, and in the event that we cancel your order, we will provide a full refund of any payments received from you.
- These T&Cs will apply to the full period of the Customer's Membership including any initial term and any renewed, rollover or continuing term.
- The Membership will commence on receipt of full payment of the Membership Fees and will continue for the Term unless earlier terminated pursuant to these T&Cs.
- Prior to expiration of the current Term, the Customer will have the opportunity to give notice to ArchiStar of its intention not to continue its Membership for a continuing or rollover term. The Customer must provide ArchiStar such notice no later than 30 days' prior to the expiration of the Membership otherwise the Membership will automatically rollover for a further 12 month term. It is the Customer's sole responsibility to:
- know when the expiration of the current Membership is due (ArchiStar will provide this information on request); and
- ensure that sufficient notice is provided to ArchiStar if the Customer does not wish to continue its Membership.
- ArchiStar is not liable for any loss, cost, expense or inconvenience arising as a result of the Customer failing to provide the requisite notice not to continue its Membership as required by these T&Cs.
- Subject to these T&Cs, any termination of the Membership prior to the expiration of a Term will not entitle the Customer to a refund of the Membership Fees.
Provision of education
- ArchiStar will make available on the ArchiStar Platform a variety of education modules covering different software or other technologies used in the digital design industry.
- The features that will be available will depend on the Membership package selected by the Customer. The features of each package will be detailed on the Website or otherwise notified to the Customer prior to the Membership commencing and shall continue to be available for the Term.
- ArchiStar may update or remove any modules from time to time in its sole discretion without prior notice to or consent from the Customer.
- The Customer acknowledges that the Membership grants access to the education modules as are available from time to time and that there is no guarantee, warranty, promise or other representation that the modules that are available at the commencement of the Membership will continue to be available during the Term.
- The ArchiStar Platform may be accessed at any time, 24 hours per day, by the Customer and any Authorised User by logging into the ArchiStar Platform using their unique login details.
- The Administrator will have access to Group details to determine the status of education modules within a Group and also for individual Authorised Users.
- The Administrator may nominate an Authorised User to access the Group details, such as a lecturer or teacher for an education customer where the Group is their class.
- The ArchiStar Platform contains a chat function allowing Authorised Users to chat with ArchiStar representatives to discuss questions and issues with the Services including any education module.
- If an ArchiStar representative is not available at the time the chat commences, a response will be provided by close of business on the next Business Day after the chat is logged.
- A records of chats will be maintained on the Membership record and each Authorised User can see a trail of their own chats. Authorised Users will not have access to third party chats unless they have been invited into the chat. Administrators will have access to chats between all Authorised Users and ArchiStar.
- It is the sole responsibility of the Customer to monitor chats, if the Customer determines that review of chats is required to ensure the integrity of their business.
- The ArchiStar Platform will contain examinations for the various education modules.
- ArchiStar will be solely responsible for creating the examinations and may update or amend same from time to time during the Term.
- All lessons in a module must be completed or marked as completed prior to the Authorised User being able to attempt an examination.
- Examinations may be taken by Authorised Users at any time and the ArchiStar Platform will allow three (3) attempts at each examination. The ArchiStar Platform may contain an option for Authorised Users to purchase additional opportunities to re-sit and examination. If the Customer does not wish to allow its Authorised Users to purchase additional opportunities to re-sit an examination, the Customer must make sure that this option is de-selected or disabled.
- The Customer will develop its own internal processes with respect to when education modules should be completed and examinations should be completed. The Customer must also determine in its internal processes whether a particular score or simply completion of a module will be considered successful completion for the purpose of its business.
- It is the sole responsibility of the Customer to make its Authorised Users aware of the date and time by which examinations must be completed. ArchiStar will not be liable for any loss, cost, expense, Claim or inconvenience experienced by the Customer or any Authorised User who is not aware of the internal processes of the Customer or the failure of the Customer to develop such an internal process.
- individual Authorised User examination results including the number of attempts, date and time of attempt and score;
- Group examination results;
- Authorised User access and usage details including educational modules completed or partially completed;
- Authorised User details and Group details; and
- such other reports as may be available from time to time.
- The Administrator may, at any time, request a report from the ArchiStar Platform and the parameters of the report requested.
- Authorised Users will not have access to the reports that the Customer has access to but may have limited reports, such as examination results, available.
- On expiration or termination of the Membership, all data including reports will cease to be available. It is the Customer's sole responsibility to ensure that any reports it wishes to keep are downloaded and saved onto the Customer's own server.
- ArchiStar will make available to the Customer online support to assist the Customer and its Authorised Users in the operation of or access to the ArchiStar Platform.
- Support Services will be provided by close of business on the next Business Day after a request for support is received. The Customer and Authorised Users may request support by sending an email to firstname.lastname@example.org or such other email address as may be notified to the Customer from time to time.
- ArchiStar may, at any time during the Term acting reasonably, nominate the combined number of support hours that will be available hours per week for the Customer and its Authorised Users to use for Support Services.
REPORTINGVarious reports will be available to the Administrator via the ArchiStar Platform which may include:
- Membership Fees are payable by the Customer to ArchiStar as a single upfront payment and the relevant Fees will depend on the package that the Customer selects.
- Access to the ArchiStar Platform will not be available until full payment of the Membership Fees has been received.
- For any renewed or rollover Term, the Membership Fees will be payable in full prior to the commencement of the renewed Term. The Membership Fee will be automatically deducted on each anniversary of commencement of the Term unless the Membership has been terminated in the manner required by this Agreement.
- If the attempt to automatically deduct the Membership Fee for any renewed period is unsuccessful, ArchiStar will make at least 2 attempts to secure payment and will send a notice to the Customer advising of the unsuccessful payment.
- If renewed Membership Fees cannot be obtained by ArchiStar access to the ArchiStar Platform will immediately be suspended and the full Membership Fee will become a debt immediately due and payable.
- Fee increase:
- Membership Fees may be increased in the sole discretion of ArchiStar from time to time. No increase in Membership Fees will apply during the Term, however any renewed period will be subject to the increased price.
- ArchiStar will notify the Customer no less than thirty (30) days prior to the expiration of the current Term of the increased price in order for the Customer to determine whether or not to continue its Membership.
- If the Customer does not agree to the increased Membership Fees, it will have a period of 14 days after notice of the increased price to provide to ArchiStar notice of its intention to terminate its Membership at the end of the current Term.
- If the Customer fails to provide notice of its intention to terminate the Membership at the end of the current Term pursuant to this clause, implied acceptance of the increased Membership Fees will occur and the Membership will rollover and continue on the basis of the increased fees.
- Package availability:
- Certain packages are only available if certain criteria are met, such as education pricing only being available to education providers.
- All accredited primary, secondary, tertiary and higher education providers will be automatically applicable for the education pricing.
- For private education providers, ArchiStar will decide, in its sole discretion acting reasonably, whether such provider is eligible for education pricing.
- Other categories of pricing will specify the criteria, if any, to be satisfied in order for the Customer to be eligible.
- The Customer is not entitled to make any set off, to withhold or deduct for any reason any monies payable to ArchiStar pursuant to these T&Cs.
- Payment of the Membership Fees may be made in any of the currencies stated to be available on the payment page of the ArchiStar website or other notified to the Customer.
- If payment is not made in Australian dollars then it is to be converted at the then exchange rate applicable as at the time of payment.
11. ArchiStar OBLIGATIONS
- ArchiStar will use all reasonable endeavours to provide the Customer with the Services during the Term of these T&Cs provided the Customer complies with its obligations under these T&Cs.
- Notice of changes:
- ArchiStar will receive notice of more than two changes made to any Authorised User's name in order for ArchiStar to be aware of misuse or fraudulent activity. ArchiStar will advise the Customer of any such notification in order for the Customer to investigate.
- ArchiStar may, in its sole discretion, decide to suspend any Authorised User account on the basis of suspected misuse or fraudulent activity and may, in its sole discretion, decide to investigate activity. ArchiStar is under no obligation to suspend any account of its own accord but will do so on request by the Customer.
- The Customer may choose not to be notified of changes to its Authorised Users' accounts by changing the option on the ArchiStar Platform.
12. CUSTOMER'S OBLIGATIONS
- The Customer must provide the details, including email address, of the person who is to act as the Administrator for the Membership.
- The Customer must keep such details updated from time to time, particularly if the nominated person ceases to be a member of the Community of the Customer.
- The Customer must develop its own internal process for the sign-up of its Authorised Users and Groups and must notify ArchiStar of its preferences.
- The Administrator will have the ability to register Authorised Users and set up Authorised User accounts or Community members can set up their own account. If the Customer does not wish its Community to have the ability to create their own accounts then the Customer must notify ArchiStar so that ArchiStar can ensure that the Membership is structured to only allow Administrator registration for new accounts.
- If the Customer fails to notify ArchiStar that it does not wish its Community to be able to self-register a new account, ArchiStar will not be liable for any loss, cost, expense, Claim or inconvenience that arises.
- If the Customer's Community are able to self-register an account, accounts will only be established with an email address that contains the same domain as the Customer. For example, if the Customer is an education provider with the domain suffix .nsw.edu.au, then only emails ending in @nsw.edu.au will be permitted to self-register. If a Community member does not have such an email address then they will be required to provide verification of their membership of the Customer's Community and eligibility to be an Authorised User.
- If requested or required by ArchiStar, the Customer must provide a list of its Authorised Users and keep such list updated from time to time. The Customer must apply its own internal processes to ensure that the names and email addresses on its Authorised Users list are accurate and that those persons continue to be part of the Customer's Community and, therefore, entitled to access the ArchiStar Platform
- The use of the ArchiStar Platform is always subject to these T&Cs as contained on the ArchiStar website or otherwise notified to the Customer and Authorised Users.
- When an Authorised User receives confirmation of their login details, or otherwise on the first occasion that they access the ArchiStar Platform, they must accept these T&Cs. No access will be granted to any Authorised User unless these T&Cs have been accepted.
- The Customer must also accept these T&Cs in order to access the ArchiStar Platform.
- The Client will be solely responsible for ensuring its website, data and files are backed up and that any Reporting, Chat or other information that the Customer wishes to keep has been downloaded or otherwise saved to its own server. Once the Membership has expired or has otherwise been terminated, all information, records and data on the ArchiStar Platform will cease to be available to the Customer and Authorised Users.
- The ArchiStar Platform may provide the Customer with options from which it may select. These options may impact the way in which the Customer's Authorised Users can access and use the ArchiStar Platform or the manner in which the Customer wishes to manage the use of the ArchiStar Platform by its Authorised Users. These options may include:
- whether its Authorised Users can pay to re-sit an examination once their three attempts have been used; and
- whether the Customer is to be notified when an Authorised User changes their name.
- The ArchiStar Platform will be set to default settings and it is the Customer's sole responsibility to ensure that any defaults which can be varied to suit the Customer's needs are so varied by the Customer.
- ArchiStar shall have no liability for any loss, cost, expense, Claim or inconvenience experienced by the Customer or its Authorised Users because a default setting applied and was not updated by the Customer.
- The Customer must provide and maintain accurate payment details and notify ArchiStar within thirty (30) days if its card or other payment details change.
- The Customer must provide and keep updated all details including corporate structure (if any), registered address and principal place(s) of business.
- The Customer is solely responsible to monitor the activity of its Authorised Users and to immediately notify ArchiStar of any suspicious, misleading or fraudulent access or activity.
- On receipt of notice of any suspected fraudulent or similar behaviour by any Authorised User, ArchiStar will suspend all access to the ArchiStar Platform for that Authorised User until the Customer confirms that it has investigated the matter and is satisfied of the innocence of the Authorised User.
- It is the sole responsibility of the Customer and its Authorised Users to ensure that:
- it has appropriate, working and up to date Equipment from which to access the ArchiStar Platform;
- it has access to appropriate software and technologies, whether online or offline, to access the ArchiStar Platform and all education modules.
- The Customer must determine using its own discretion whether the Services are appropriate for its purposes and for the purposes of its Community.
- The Customer must undertake its own investigations of the content and the Services to make its own determination as to whether the ArchiStar Platform is appropriate and to ensure that the outcomes and learnings from the education modules will be applicable and useful for itself and its Authorised Users.
ACCEPTANCE OF T&Cs
BACKUP OF INFORMATION AND DATA
SELECTION OF OPTIONS
MAINTAIN AND UPDATE DETAILS
MONITORING OF USE AND MISUSE
APPROPRIATE EQUIPMENT AND SOFTWARE
APPROPRIATE FOR PURPOSES
13. INTELLECTUAL PROPERTY
- The Customer acknowledges and agrees that the Customer will obtain no rights in ArchiStar's Intellectual Property which, without limitation, is comprised in all content on the ArchiStar Platform and website and within all Services. ArchiStar's Intellectual Property will at all times during these T&Cs and after its termination remain the sole property of the ArchiStar.
- Unless expressly authorised in writing to do so, the Customer and its Authorised Users must not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any content, information, data or material that contains or comprises the ArchiStar Intellectual Property or the Intellectual Property rights of any third party.
- The Membership confers on the Customer only the right to use the ArchiStar Intellectual Property for the purposes described in these T&Cs. The Customer must not, and must ensure that no-one in its Community, uses or discloses the ArchiStar Intellectual Property for any other purpose. The Customer must, immediately on becoming aware of or suspecting any breach of the ArchiStar Intellectual Property, notify ArchiStar of such breach or suspected breach and the Customer will do all reasonable things to assist ArchiStar in pursuing the offender and/or rectifying the breach.
- To the extent that the Customer has or at any time acquires any right, title or interest in or in relation to the Intellectual Property of ArchiStar, the Customer by these T&Cs assigns to ArchiStar absolutely its entire right, title and interest in such Intellectual Property.
14. CONFIDENTIAL INFORMATION
- Each party will:
- keep the Confidential Information of the other party confidential in the same manner as its holds its Confidential Information of like kind but in no event shall the recipient exercise less than reasonable care in maintaining the confidence of such information and shall not disclose it or make it available directly or indirectly to any third party (subject to disclosure permitted by these T&Cs); and
- use the Confidential Information of the other party solely for the purpose of performing its obligations under these T&Cs.
- Each party may only disclose the Confidential Information of the other party to its officers, employees and permitted subcontractors who:
- have a need to know the Confidential Information (and only to the extent that each has a need to know); and
- have undertaken to maintain the confidentiality of the Confidential Information in accordance with this clause.
- The obligations of confidentiality under this clause do not extend to information that (whether before or after the date of these T&Cs):
- was rightfully known to or in the possession or control of the recipient prior to its receipt from the other party and which is not subject to an obligation of confidentiality on the recipient;
- is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient or any of its disclosees);
- is independently developed by the recipient without the use of the other party's Confidential Information; or
- is required to be disclosed by a governmental agency or law so long as the recipient promptly provides the other party with written notice of the required disclosure.
NEED TO KNOW
LIMITATION OF OBLIGATION
15. GENERAL WARRANTIES & LIMITATION OF LIABILITY
- ArchiStar will not be liable for any loss, cost, expense, inconvenience or Claim incurred by the Customer which arises from
- the Customer failing to supply accurate and timely information requested by ArchiStar or required by these T&Cs or
- the Customer and any Authorised User using their own knowledge, skill and experience to develop any design or content whether or not comprising skills learned through the ArchiStar Platform;
- any change or update to any software, whether during or after the Term, in respect of which an education module has been created which results in the education module being incorrect or less than accurate in any manner;
- the Customer or its Authorised Users implementing any training in a manner other than as described in the ArchiStar Platform; or
- the Customer failing to have or continue during or after the Term to have access to any Equipment or technology to enable the Customer and its Authorised Users to access or use the Services.
- The ArchiStar Platform is provided solely for educational purposes in respect of the content contained within the ArchiStar Platform from time to time. It is the sole responsibility of the Customer to investigate the content prior to entering these T&Cs to determine whether the content and the Services are appropriate for its purposes.
- ArchiStar makes no warranty of fitness for purpose apart from the purposes listed in these T&Cs.
- The Customer acknowledges and agrees that ArchiStar shall not be held responsible or liable for:
- any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or from vulnerabilities or threats which fall outside of the parameters of these T&Cs nor
- any loss or damage to the Client's data, software or hardware caused by any 'updates' downloaded by the Customer in respect of that software.
- Except to the extent required by the law or as is expressly set out in the T&Cs, ArchiStar specifically disclaims all or any liability arising from your access to or use of the Website and Content, making any order or purchasing any services or program, and in no event will ArchiStar, its subsidiaries, affiliates, officers, directors, shareholders, employees or agents be liable for any loss or damage of any kind, including indirect, incidental, consequential, punitive, or special damages or any loss of use, loss of profits or loss of data, whether in an action in contract, tort, strict liability or otherwise (including but not limited to negligence), arising out of or in any way connected with those matters (even if ArchiStar has been advised of the possibility of such damages).
- In any event, ArchiStar's total liability to you for damages, losses, and causes of action (whether in contract or tort (including, but not limited to, negligence) or otherwise) will not exceed the amount paid by you, if any, for accessing the Website or purchasing any services.
- ArchiStar's liability for breach of any condition or warranty implied by legislation is, at ArchiStar's option, limited to supplying services again or payment of the cost of having services supplied again.
- Without limiting the above, you acknowledge that ArchiStar accepts no responsibility or any liability for orders made by you, and you acknowledge that Instructions are to be strictly observed and followed at your own risk. ArchiStar does not accept any responsibility or liability for any information or errors provided by you in the order, or in booking or receiving any services, including your failure to do all things necessary to ensure the order, booking and receipt of services, are suitable and safe for your circumstances.
- You release and forever discharge ArchiStar, its officers, employees and agents from all and any loss, damage or liability (including indirect, special or consequential) excluded under these T&Cs, including from any third party claim, except to the extent that any legislation applies and cannot be lawfully excluded.
- You indemnify and will keep indemnified, ArchiStar and its subsidiaries, affiliates, officers, directors, agents, shareholders, employees or agents and will hold us harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of the T&Cs, or your viulation of any law or the rights of any party. You also indemnify and will keep indemnified ArchiStar from any and all damage you may cause ArchiStar, its business, or the Website due to your interaction with the Website including without limitation your contributions, if any to the Website.
- You indemnify and will keep indemnified and hold harmless ArchiStar, its officers, employees and agents against any loss or damage of any kind that is either excluded under the T&Cs, including from any third party claim, for any property or injury to or death of any person, or caused as a result in any way by a breach by you of the T&Cs, any negligent act or omission or wilful misconduct of yours or any claim, suit or action brought against ArchiStar as a result of your ordering, booking and receiving any services or programs.
- This Clause contains continuing separate obligations and it survives termination.
FITNESS FOR PURPOSE
16. TERMINATION OF MEMBERSHIP
- The Membership is is a fixed term agreement and may not be terminated by either party other than as described in these T&Cs.
- A party may immediately (or with effect from any later date it may nominate) terminate the Membership by written notice to the other party if:
- the other party breaches a material term of these T&Cs and such breach is not rectified within 30 days of notice of such breach;
- a receiver, receiver and manager, an official manager, a controller, a liquidator, a provisional liquidator, an administrator or other like person is appointed for the whole or substantially the whole of the other party's assets, undertaking or business;
- a mortgagee or chargee enforces a security held in respect of the whole or substantially the whole of the other party's assets undertaking or business;
- any scheme of arrangement between the party and its creditors is entered into;
- the other party becomes insolvent or is otherwise unable to pay its debts as and when they become due or otherwise if something with the same or similar effect to the above sub-paragraphs happens under the laws of any jurisdiction.
MUTUAL GROUNDS FOR IMMEDIATE TERMINATION
- ArchiStar may immediately terminate these T&Cs by written notice to the Customer if:
- ArchiStar determines in its sole reasonable opinion that its Intellectual Property is not secure or that any breach of its Intellectual Property rights has occurred, is likely to occur or is suspected;
- ArchiStar determines in its sole reasonable opinion that the Customer or any of its Authorised Users is behaving in a fraudulent, misleading or controversial manner with respect to the ArchiStar Platform, any other Authorised User or in respect to ArchiStar;
- ArchiStar determines in its sole reasonable opinion, that the behaviour of the Customer whether or not with regard to the ArchiStar Platform, is such to bring the Customer and/or ArchiStar into disrepute; or
- ArchiStar or any of its representatives experiences any form of discrimination, harassment, aggressive, condescending, disrespectful or anti-social behaviour from the Customer or any of its officers, employees, agents, contractors or from any visitor attending at the premises of the Customer.
- Upon termination of the Membership any clause the survival of which is required to enable ArchiStar to protect and enforce its rights under these T&Cs shall survive termination of the Membership.
- On the expiration or termination of the Membership, all access to the ArchiStar Platform will cease.
- All information, data and materials contained on the ArchiStar Platform will cease to be available and ArchiStar is under no obligation to store or maintain such data. If the Customer wishes to keep a copy of its records, reports or other information it must ensure that such information is saved on its own servers prior to the expiration or termination of these T&Cs.
- Any examination which has not been taken as at the date of expiration or termination will no longer be available. As such, it is the Customer's responsibility to ensure that its Authorised Users are aware of the last date by which examinations must be taken. If the Customer wishes to download a Report showing the examination results, the Customer must ensure that it allows sufficient time for its Administrator to access the ArchiStar Platform after the examination for this purpose.
- Other than for termination for breach, if the Membership is terminated prior to the end of any Term, no refund of Membership Fees will be applicable. In exceptional circumstances only, ArchiStar may agree to refund Membership Fees such decision being made in the sole discretion of ArchiStar acting reasonably.
CONSEQUENCES OF TERMINATION
17. GENERAL PROVISIONS
- All Fees are exclusive of GST unless otherwise expressly advised.
- If a payment by a party under these T&Cs is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment must be inclusive of any GST payable and will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.
- The expiry or termination of the Membership will not affect or limit any accrued rights of the parties.
- The Customer will be deemed to accept these T&Cs without execution of any document, if the Customer provides to ArchiStar instructions, approval or authority to proceed with the Services, whether verbally or in writing, at any time after receipt by the Customer of these T&Cs.
- A party will not be liable for any failure or delay in the performance of its obligations under these T&Cs if that failure or delay is due to circumstances beyond that party's control ("Force Majeure"). Any party who is, by reason of Force Majeure, unable to perform any obligation or condition under these T&Cs must notify the other parties as soon as possible specifying:
- the cause and extent of such non-performance;
- the date of commencement of non-performance; and
- the means proposed to be adopted to remedy or abate the Force Majeure.
- A party who is, by reason of Force Majeure, unable to perform any obligation or condition under these T&Cs must:
- use all commercially reasonable endeavours to remedy or abate the Force Majeure as quickly as possible;
- resume performance as quickly as possible after cessation of the Force Majeure; and
- notify each party when the Force Majeure has terminated or abated to an extent which permits resumption of performance to occur.
- Subject to any other termination provisions a non-performance by either of the parties of any obligation or condition under these T&Cs shall be excused during the time and to the extent that such performance is prevented, whully or in part, by an event of Force Majeure of which notice has been given under this clause.
- The period of time during which performance of any obligation or condition is prevented by Force Majeure shall be added to the time provided in these T&Cs for performance of that obligation or condition and to the time required for the performance of any act dependent on that obligation or condition.
- In this document unless the context otherwise requires.
- a party means a party to this document and a reference to a person includes any other entity recognised by law and vice versa and an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
- words importing the singular number include the plural number and vice versa;
- words importing one gender include every gender;
- any reference to any of the parties by their defined T&Cs includes that party's executors, administrators and/or permitted assigns and nominees, or being a company, its successors and/or permitted assigns;
- every agreement or undertaking expressed or implied by which more than one person agrees or undertakes any obligation and/or derives any benefit in T&Cs of this document shall bind and/or enure for the benefit of such persons jointly and each of them severally;
- clause headings are for reference purposes only;
- where any word or phrase is given a defined meaning in this document, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;
- unless otherwise specified, T&Cs defined in the Corporations Act will have the same meanings when used in this document;
- a reference in this document includes any part, clause, party, annexure, exhibit, appendix or schedule of this document;
- a reference to winding up or bankruptcy includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 and being placed under official management, and to the circumstances and events giving rise to or contributing to such conditions or matters;
- a reference to dollars, A$ or $ means the lawful currency of Australia;
- all references to accounting and financial T&Cs have the meaning commonly given to them in accordance with the accounting principles generally accepted in Australia;
- a reference to any statute, regulation, proclamation, ordinance or by-law includes all states, regulations, proclamations, ordinances or by-laws amending, consulidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute;
- no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document;
- This document and the terms of the Membership may not be modified, amended, added to or otherwise varied except by a document in writing executed by all of the parties.
- This document
- shall enure for the benefit of and be binding upon the parties hereto and their respective successors and assigns, and
- may not be assigned by any party without the prior written consent of all of the parties.
- All notices to be issued under this document are to be issued in writing and in accordance with these provisions unless expressly specified otherwise.
- Any communication which is given by any party under this document must be either
- handed personally to that other party,
- left at the address of the party described in this document,
- sent by pre-paid ordinary post to such address,
- communicated by facsimile directed to the party, or
- communicated by email to the party at the particulars set out in this Deed.
- Except in the following circumstances, a communication takes effect when received:-
- in the case of a letter sent by pre-paid ordinary post, on the 3rd day after posting;
- in the case of a facsimile, on the issue of a transmission report confirming receipt of the entire fax by the recipient party.
- in the case of an email, on receipt by the sender of confirmation of the recipient party's answer back code after transmission.
- If a party subsequently communicates another address, facsimile number or email details, the particulars in that communication supersede (where applicable) the particulars set out above.
- If a party subsequently communicates another address, facsimile number or email details, the particulars in that communication supersede (where applicable) the particulars set out above.
- Each and every party warrant that:
- each has voluntarily entered into this document without any duress
- other than as set out in this document, no promises, representations or inducement has been made to enter into this document;
- each has had full opportunity and has consulted with his solicitors and received legal advice concerning the nature, effect and extent of this document; and
- each is aware that each of the others is relying on this Warranty in executing this document.
- The rights and obligations of the parties in respect of agreements, indemnities, covenants and warranties contained in this document are
- continuing agreements, covenants, indemnities and warranties and accordingly,
- are not merged or extinguished by the partial performance by a party of their obligations under this document, and will remain in full force and effect until the obligations of all parties under this document are discharged in full.
- Each of the parties agree that they will execute and deliver such further documents at their own expense as they may reasonably be requested by any other party to properly and fully effect the purpose of this document.
- This document is governed by the law of the State of New South Wales and, where applicable, Australia each of the parties irrevocably submits to the non-exclusive jurisdiction of the State of New South Wales and the country of Australia.
- No waiver by any party of any default in the strict and literal performance of or compliance with any provision, condition or requirement herein shall be deemed to be
- a waiver of strict and literal performance of and compliance with any other provisions, conditions, or requirement herein, and
- a waiver of or in any other manner release any party from strict compliance with any provision, condition or requirement in the future.
- Any delay or omission by any party to exercise any rights provided for in this document does not in any manner impair the exercise of any such right accruing to it thereafter.
- Any provision in this document which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this document or affecting the validity or enforceability of that provision in any other jurisdiction.
- This document constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and extinguishes all prior agreements or deeds and understandings between the parties.
- This document may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- If any provision of this document is void, voidable, unenforceable or illegal in its T&Cs, but would not be void, voidable, unenforceable or illegal if read down, and it is capable of being read down, that provision is read down accordingly.
ACCEPTANCE WITHOUT EXECUTION
INTERPRETATION OF DOCUMENT
AMENDMENT OF DOCUMENT
ISSUE OF NOTICES
DELIVERY OF NOTICE
RECEIPT OF NOTICE
CHANGE OF NOTICE PARTICULARS
DELAY OR OMISSION