1.1 These Terms and Conditions (Terms) are between Silent Reef (ABN 72 186 331 161, its successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity that purchases Services from us (referred to as “you” or “your”), and collectively the Parties.
1.2 Silent Reef provides online training and support for people running campaigns to protect their environment and/or community via our website www.silentreef.com (Site) (Services). Silent Reef provides free and paid content and Services, and these Terms cover both free and paid content and Services.
1.3 You have requested Services, described on and able to be ordered via our Site). You accept these Terms by:
- ticking the online acceptance box;
- confirming by email that you accept the Terms;
- instructing us to proceed with the Services; or
- making payment for the Services as set out on the Site.
1.4 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details at the end of these Terms. Using or purchasing our Services indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not order or use the Services if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you should not use or purchase our Services from us.
2.1 Access to some of our Services will require you to register for an account (Account). It is your responsibility to keep the details of your Account, including user name and password, confidential. You are liable for all activity on your Account, including any purchases made using your account details.
2.2 We agree to provide the Services with due care and skill.
2.3 We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
2.4 We will provide the Services for the period as set out on our website or advised by us in person (Service Period).
2.5 We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
2.6 Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the products or services provided by Third Parties.
3. PRICE, INVOICING AND PAYMENT
3.1 You agree to pay us the amounts set out on our Site (Fees). All amounts are stated in Australian dollars. All amounts include Australian GST (where applicable). You will be required to make payment by way of credit card, PayPal or other payment methods as set out on the Site when making a purchase for the Services.
3.2 If you require variation to your order, you must make a request to us in writing. The price and Services may only be varied at our discretion and by written agreement between us.
3.3 You agree to pay the full amount for the Services upon placing an order for the Services on our Site. Should your payment default, we will cease to provide the Services to you until we receive full payment for the Services
3.4 Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for Services that you order on our Site after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on our Site or are provided to you, whichever is earlier.
3.5 We may from time to time offer promotional discounts for our Services. Any offer should be advised to us at the time of booking. The conditions of use relating to any offer will be specified at the time that it is issued
4. YOUR OBLIGATIONS AND WARRANTIES
4.1 You warrant that throughout the term of these Terms that:
- there are no legal restrictions preventing you from agreeing to these Terms;
- you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
- the information you provide to us is true, correct and complete;
- you will not infringe any third party rights in working with us and receiving the Services;
- you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
- you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
- you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
- if applicable, you hold a valid ABN which has been advised to us; and
- if applicable, you are registered for GST purposes.
4.2 You warrant that you have public liability or other insurance that you can reasonably be expected to have, in respect of your actions following use of the Services.
4.3 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior 12 month period.
4.4 You agree that you are solely responsible for determining the suitability of any of the Services, and your reliance on any information that is provided to you through our Site, Services or Materials are at your own risk.
5. OUR INTELLECTUAL PROPERTY
5.1 The materials that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
5.2 The Materials are provided to you for your non-exclusive, non-commercial use only. The Materials are not to be shared with any third parties, and if such Materials are disclosed to any third parties without our consent, we reserve the right to terminate your Account and cease providing the Services immediately.
5.3 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
5.4 Your use of our Materials does not grant you a licence, or act as a right to use, any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
5.5 You must not breach our Intellectual Property rights by, including but not limited to:
- altering or modifying any of the Materials;
- creating derivative works from the Materials; or
- using our Materials for commercial purposes such as onsale to third parties.
5.6 Our material licensed to you: We will license to you the Materials made available to you on our Site, upon your opening an Account, and upon full payment of the Fees (for paid content). You may only use Materials for your own education and to organise such campaigns to which the Materials are applicable. You may not publish or otherwise disclose or use the Materials for any material or commercial gain.
5.7 We grant you a non-perpetual, non-exclusive, revocable, non-transferable, worldwide licence to use the Materials for the agreed purpose set out in clause 5.6.
6. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
6.1 For any information including any Intellectual Property that you provide to us as requested by the Site and/or to us to enable us to provide and update the Services, you:
- warrant that you have all necessary rights to provide the Intellectual Property to us;
- grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require; and
- consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
6.2 If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
- irrevocably consent to any amendment of the Intellectual Property in any manner;
- irrevocably consent to us using or applying the Intellectual Property without any attribution of authorship;
- agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
- agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
6.3 This clause will survive the termination of these Terms.
7. CONFIDENTIAL INFORMATION
7.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary, Third Party Suppliers), to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
7.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
7.3 These obligations do not apply to Confidential Information that:
- is authorised to be disclosed;
- is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
- is received from a third party, except where there has been a breach of confidence; or
- must be disclosed by law or by a regulatory authority including under subpoena.
7.4 This clause will survive termination of these Terms.
8. FEEDBACK AND DISPUTE RESOLUTION
8.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
8.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
- The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
- If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
8.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
9.1 These Terms will have effect from the date of acceptance and shall continue for the duration of the Services for which you have paid, or until the date on which these Terms are terminated in accordance with this clause 9.
9.2 Without limiting clause 9.1, you may terminate the Services and these Terms within 14 days from accepting these Terms by notice in writing, including by email. If the Services and these Terms are terminated in accordance with this clause 9.2, you will receive a full refund of the Fees you have paid.
9.3 Either Party may terminate these Terms if there has been a material breach of these Terms, subject to the dispute resolution procedure in these Terms.
9.4 We may terminate these Terms immediately, at our sole discretion, if:
- we consider that your use of the Service is inappropriate, improper or unlawful;
- we consider that your use of the Materials is in breach of clause 5;
- you act in a way which we reasonably believe will bring us or our Site into disrepute;
- you provide us with incorrect payment details or any other incorrect information; or
- for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
9.5 On termination of these Terms otherwise that in accordance with clause 9.2, you agree that any payments made are not refundable to you.
9.6 On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Licensed Material, Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
9.7 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property, but excluding any documents containing your Intellectual Property that we have used to provide our Services under the license granted to us by clause 6.1.
9.8 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
9.9 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
10. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
10.1 Australian Consumer Law (ACL): If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are: rendered with due care and skill; fit for the purpose that we advertise unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are able to exclude liability, our total liability for loss or damage you suffer or incur from the Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
10.2 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in the period set out on the Site where it is affected by your delay in response, or supply of incomplete or incorrect information.
10.3 Referral: We may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
10.4 Legal advice: Silent Reef is not a law firm. Nothing in these Terms, on our Site, or in any Materials or other content provided to you in your use of the Services, shall be taken to be legal advice. It is your responsibility to seek legal advice before using the Services for a purpose permitted by these Terms.
10.5 Money-back guarantee: Our Services are provided with a 14 day money back guarantee which commences on the date we receive your payment for the Services.
10.6 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
10.7 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:
- implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms, including but not limited to those in respect of the success of any campaign you undertake using the Services;
- the Services being unavailable; and
- any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services, the use of our Services and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
10.8 Limitation: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
10.9 This clause 10 will survive termination of these Terms.
11.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
- any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
- any use of the Services by you, in a campaign or otherwise;
- any breach of these Terms; and
- any misuse of the Services, the Site or the Materials from or by you, your employees, contractors or agents.
11.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
11.3 This clause will survive termination of these Terms.
12.2 Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
12.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
12.4 GST: If and when applicable, GST payable on the Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
12.5 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
12.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
12.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
12.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
12.9 Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address nominated in your Account, or if no address is nominated, the address provided at the time you order our Services. Our address is set out at the end of these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
12.10 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
13.1 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement or otherwise.
13.2 Confidential Information includes confidential information about you, your credit card or payment details, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
13.3 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
13.4 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions, patents, improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any Confidential Information.
13.5 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
13.6 Services means
- Online training courses in the area of environmental campaigning;
- The provision of content and resources both paid and unpaid; and
- Such other services made available on the Site from time to time.
Unless otherwise defined herein or the context otherwise requires, capitalised terms used in these Terms will have the meanings given to them in the Definitions of these Terms.
David Roe trading as Silent Reef (ABN 72 186 331 161)
Level 36, Governor Phillip Tower, 1 Farrer Place, Sydney, NSW 2000, Australia
Contact (I am often overseas, so this is the best way to contact me)
Last update: 15 April 2016
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