Dated the 21st Day of February 2014
In these terms and conditions, “we” “us” and “our” refers to 12Descartes Pty Ltd t/a Exam Success. Your access to and use of all information on this website including purchase of our product/s is provided subject to the following terms and conditions.
We reserve the right to amend this Notice at any time and your use of the website following any amendments will represent your agreement to be bound by these terms and conditions as amended. We therefore recommend that each time you access our website you read these terms and conditions.
2. You agree to ensure that your registration details are true and accurate at all times and you undertake to update your registration details from time to time when they change.
3. On registration, we provide you with a password and username. On registration you agree to pay for our services as set out on our website.
4. We reserve the right to terminate your registration at any time if you breach these terms and conditions.
Our Website Services
5. By proceeding to purchase through our website, you acknowledge that you are over 13 years of age. If you are between 13 and 18 years old, your registration and/or purchases must be created on your behalf by your parent or legal guardian. If you are under 13, your parent or legal guardian must create an account for themselves and be the contact person for any communication.
6. All prices are in Australian Dollars (AUD) and are inclusive of GST. We endeavour to ensure that our price list is current. Our price list can be accessed from our home page and we reserve the right to amend our prices at any time. If you have placed an order, we undertake to fulfil your order at the price listed at the time you ordered.
7. We strive to ensure that our products are described as accurately as possible on our website, however we do not warrant that the description is accurate. Where we become aware of any misdescription, we reserve the right to correct any error or omission.
8. Images have been provided for illustrative purposes only and we do not guarantee that any image will reproduce in true colour nor that any given image will reflect or portray the full design or options relating to that product.
9. Our products are for sale to those aged over 13 years old. By proceeding to purchase through our website, if you are between 13 and 18 years old, your registration and/or purchases must be created on your behalf by your parent or legal guardian.
10. We endeavour to ensure that our product list is current however we give no undertaking as to the availability of any product advertised on our website.
11. All prices are in Australian Dollars (AUD) and are inclusive of GST. Our price list can be accessed from our home page and we reserve the right to amend our prices at any time.
12. Packaging and postage is an additional charge, calculated at time of purchase.
14. We undertake to accept or reject your order within Seven (7) days. If we have not responded to you within Seven (7) days, your offer is deemed to be rejected. We are not required to give reasons for rejecting your offer to purchase however the most likely reason for rejecting your offer will be that we do not currently have that product in stock.
15. Once you have submitted an order, you may not cancel that order even if our acceptance or rejection of your offer is still pending.
16. Delivery of your ordered product/s will be as set out on our website. Title in the goods passes to you when we have received payment. Our terms of payment are set out on the order page.
17. All risk of loss or damage to the goods passes to you when we despatch the goods.
18. We undertake to reimburse you for any product delivered to you that is faulty or is in a damaged condition. If you wish to return a faulty or damaged product, you must notify us through our designated “contact us” webpage where we set out our requirements relating to return of such goods.
19. If we are unable at the time of return to replace or exchange returned goods, we undertake to reimburse your credit card for the amount initially debited for the purchase including packaging and postage charges less an administration fee of $20 which includes merchant fees.
20. When you visit our website, we give you a limited licence to access and use our information for personal use.
21. You are permitted to download a copy of the information on this website to your computer for your personal use only provided that you do not delete or change any copyright symbol, trade mark or other proprietary notice. Your use of our content in any other way infringes our intellectual property rights.
22. Except as permitted under the Copyright Act 1968 (Cth), you are not permitted to copy, reproduce, republish, distribute or display any of the information on this website without our prior written permission.
23. The licence to access and use the information on our website does not include the right to use any data mining robots or other extraction tools. The licence also does not permit you to metatag or mirror our website without our prior written permission. We reserve the right to serve you with notice if we become aware of your metatag or mirroring of our website.
24. This website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and we take no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply our endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
25. You may link our website with our consent. Any such linking will be entirely your responsibility and at your expense. By linking, you must not alter any of our website's contents including any intellectual property notices and you must not frame or reformat any of our pages, files, images, text or other materials.
Intellectual Property Rights
26. The copyright to all content on this website including applets, graphics, images, layouts and text belongs to us or we have a licence to use those materials.
27. All trade marks, brands and logos generally identified either with the symbols TM or ® which are used on this website are either owned by us or we have a licence to use them. Your access to our website does not license you to use those marks in any commercial way without our prior written permission.
28. Whilst we have taken all due care in providing the information on our website, we do not provide any warranty either express or implied including without limitation warranties of title or implied warranties of merchantability or fitness for a particular purpose.
29. To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
30. We also take all due care in ensuring that our website is free of any virus, worm, Trojan horse and/or malware, however we are not responsible for any damage to your computer system which arises in connection with your use of our website or any linked website.
Statutory Guarantees and Warranties to Consumers
31. Schedule 2 of the Competition and Consumer Act 2010 (“C&C Act”) defines a consumer. Under the C&C Act we are a supplier of either goods or services or both to you, and as a consumer the C&C Act gives you statutory guarantees. Attached to the Standard Terms and Conditions are:-
(i) Schedule 2 of the C&C Act; and
(ii) those statutory guarantees, all of which are given by us to you if you are a consumer.
32. If you are a consumer within the meaning of Schedule 2 of the C&C Act of our goods or services then we give you a warranty that at the time of supply of those goods or services to you, if they are defective then:-
(i) We will repair or replace the goods or any part of them that is defective; or
(ii) Provide again or rectify any services or part of them that are defective; or
(iii) Wholly or partly recompense you if they are defective.
33. As a consumer under the C&C Act you may be entitled to receive from us notices under Schedule 2 section 103 of the C&C Act. In that regard:-
(i) If you are a consumer within the meaning of Schedule 2 of the C&C Act and the goods or services we are providing relate to the repair of consumer goods then we will give you any notice which we are obliged to give you under Schedule 2 section 103 of the C&C Act.
(ii) If we are a repairer of goods capable of retaining user-generated data then we hereby give you notice that the repair of those goods may result in the loss of the data.
(iii) If we are a repairer and our practice is to supply refurbished goods as an alternative to repairing your defective goods or to use refurbished parts in the repair, then we give you notice that the goods presented by you to us for repair may be replaced by refurbished goods of the same type rather than being repaired. We also give you notice that we may use in the repair of your goods, refurbished parts.
Limitation of Liability
34. If you are not a consumer within the meaning of Schedule 2 of the C&C Act then this clause applies to you. If you are a consumer within the meaning of the C&C Act then this clause has no effect whatsoever to in any way limit our liability or your rights. If you are not a consumer:-
(i) To the full extent permitted by law, our liability for breach of an implied warranty or condition is limited to the supply of the services again or payment of the costs of having those services supplied again.
(ii) We accept no liability for any loss whatsoever including consequential loss suffered by you arising from services we have supplied.
(iii) We do not accept liability for anything contained in the post of a user or in any form of communication which originates with a user and not with Us.
(iv) We do not participate in any way in the transactions between our users.
35. By accessing our website, you agree to indemnify and hold us harmless from all claims, actions, damages, costs and expenses including legal fees arising from or in connection with your use of our website.
36. If a Force Majeure event causing delay continues for more than Thirty (30) days, we may terminate this Agreement by giving at least Seven (7) days Notice to you. “Force Majeure” means any act, circumstance or omission over which we could not reasonably have exercised control.
37. These terms and conditions are to be governed by and construed in accordance with the laws of Victoria and any claim made by either party against the other which in any way arises out of these terms and conditions will be heard in Victoria and you agree to submit to the jurisdiction of those Courts.
38. If any provision in these terms and conditions is invalid under any law the provision will be limited, narrowed, construed or altered as necessary to render it valid but only to the extent necessary to achieve such validity. If necessary the invalid provision will be deleted from these terms and conditions and the remaining provisions will remain in full force and effect.
39. We undertake to take all due care with any information which you may provide to us when accessing our website. However we do not warrant and cannot ensure the security of any information which you may provide to us. Information you transmit to us is entirely at your own risk although we undertake to take reasonable steps to preserve such information in a secure manner.
These Terms and Conditions have been specifically drafted for, and provided to 12Descartes Pty Ltd t/a Exam Success by LawLive Pty Ltd (www.lawlive.com.au).
Dated the 9th Day of April 2020
12Descartes Pty Ltd t/a Exam Success as part of their diversified products and services, provides an online marketplace platform on designed parts of the website for Consumers to search for and book Classes with Independent Tutors and for Independent Tutors to list their Classes for sale. The current marketplace goods/services are “Book Tutor” located at https://www.examsuccess.com.au/book_tutor
In these terms and conditions, “we” “us” and “our” refers to 12Descartes Pty Ltd (ABN 45 147 934 334) t/a Exam Success. These Exam Success Marketplace Terms of Service are in addition to the Website Terms and Conditions (you can refer to them at https://www.examsuccess.com.au/info/terms).
The terms 'you' or 'your' means the Consumer who accepts these Terms of Service. Acceptance of these Terms of Service will be indicated by your use of the Services and any associated software, networks, processes, including the purchase of any goods or services through the Website. These Terms of Service apply to you and your use of the Services and any associated software, networks and processes, including the purchase of goods or services from the Exam Success Marketplace. By browsing the Website, or utilising Services offered in the Marketplace, you agree to these Terms. If you do not agree to these Terms you should immediately cease use of the Services and accessing the Website.
1.1. In these Terms, these expressions shall have the following meanings, unless otherwise stated:
'Agreement' or 'Terms' means these Terms of Service, including all of the terms of any order placed by you through the Website (if applicable).
'Class' means a session or course as provided by the Independent Tutor for Consumers to purchase on the Marketplace.
'Consumer' refers to any person using the Services, whether they are a Purchaser or a person who browses, visits or otherwise uses the Website, the Marketplace or the Services.
'Intellectual Property' means all rights in patent, copyright, trade names, trademarks, logos, designs, algorithms and images (including still images, audio and audio-visual media).
'Marketplace' means the online portal located on or via the Website through which certain goods and services can be bought and sold.
'Material' means any information or content (including, but not limited to, data or source codes) or images in any form (whether visible or not) stored on or used in conjunction with the Services.
'Purchaser' means any person who purchases goods and/or services listed by Independent Tutors for sale on the Marketplace.
'Registration Data' means information provided by you to us for the purposes of your registration to access certain sections of the Website including, but not limited to, your name, date of birth, gender and contact details.
'Services' refers to the Marketplace we provide pursuant to this Agreement.
'Independent Tutor' means any person who lists goods and / or services for sale on the Marketplace.
'Website' means the website located at https://www.examsuccess.com.au or any other website nominated by Exam Success from time to time.
1.2. Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any Act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations (including human, corporate and unincorporated), and vice versa. Paragraph headings are for reference and convenience purposes only, and all references to clauses are to clauses in this Agreement unless otherwise specified.
1.3. In order to confirm your agreement of the Exam Success Marketplace Terms of Service, you will affirm that you have read these Terms of Service in the relevant area on the Website. Your continued use of the Services will be deemed to be acceptance of these Terms. If you do not agree to these Terms you should immediately cease accessing the Website and using the Services.
2. Overview of Services
2.1. The Marketplace is a portal or conduit providing Consumers with an online platform through which persons may list, advertise, sell or exchange goods and/or services. The Marketplace allows Consumers to easily search for and book Classes with Independent Tutors. We do supply or sell goods and/or services on, or via, the Website and the Exam Success Marketplace is a separate business line of Exam Success.
2.2. To use the Services, a Consumer may register for an account in accordance with Clause 4. Alternatively, an unregistered Consumer may search and find Independent Tutors’ profiles on the website and pay for an Independent Tutor’s services.
2.3. Consumers have access to the Services and are able to:
(a) Access the website and view the Independent Tutors listed on it;
(b) Browse and book Classes with Independent Tutors;
(c) Communicate with their Independent Tutors on the platform as a result of the Classes purchased via the Website; and
(d) Access a third-party platform to receive the virtual service of the engaged Independent Tutor. The platform also records the service delivered and these recordings are stored for safety and security reasons.
2.4. Consumers will:
(a) have the option, if available, to provide a rating regarding the goods and / or services after they engage with an Independent Tutor for the use of any goods and / or services; and
(b) be able to rate an Independent Tutor’s goods and services (based on a rating system of 1 – 5 stars) as well as give feedback regarding the goods and / or services sold by the Independent Tutor. Consumers should provide honest and non-biased reviews that at all times comply with their obligations under these Terms.
2.5. At the absolute discretion of Exam Success, Exam Success may hide any reviews submitted by a Consumer if it perceives such reviews to be unfair, untrue, discriminatory, derogatory, in breach of the terms of this Agreement or otherwise unfairly damaging to an Independent Tutor. For the avoidance of doubt, Exam Success bears no responsibility to maintain, moderate or monitor reviews on its Website. However, it may nonetheless remove reviews for any of the reasons above.
3. Using the Services
3.1. You must ensure that your access to or use of the Services is not illegal or otherwise prohibited by laws that apply in your jurisdiction.
3.2. You must take precautions to ensure that when accessing the Services that you do not expose your telecommunications or computer systems to viruses, malware or other forms of interference that may damage your telecommunications or computer systems. We will not take responsibility for any such damage to your telecommunications or computer systems that may arise in connection with your access to the Website and use of the Services.
3.3. Any information on this Website or otherwise provided to Consumers is supplied in good faith but we do not guarantee the accuracy or completeness of any information provided by us or any third party, including any Independent Tutor. You agree that it is your responsibility to make enquiries as to the accuracy or completeness of any information which we receive from you or third parties.
3.4. You agree that you have sole responsibility for any activity that occurs on your account. You must keep your Exam Success account details and password secure, as you are responsible for any activity on your account (whether undertaken by you or anyone else). You agree to notify us immediately if you become aware of or suspect any security breach or unauthorised use of your Exam Success password or account.
3.5. Exam Success may discontinue or stop (temporarily or permanently) providing access to the Services (or any feature of the Services) to you, Consumers, guests or members generally, at its absolute discretion and without prior notice to you.
3.6. Exam Success may, at its absolute discretion, terminate or suspend your Exam Success account or restrict your access to the Services for any reason including for security, technical, maintenance, legal or regulatory reasons, or due to any breach of these Terms. If we do this, you may be prevented from accessing all or parts of the Services, your account details or other content contained in your Exam Success account. We will not be liable to you or any third party for doing so. We may impose limits or restrictions on your use of the Services. Further, for security, technical, maintenance, legal and / or regulatory reasons, or due to any breach of these Terms, we may withdraw the Services or change or remove functions of the Services at any time without notice to you.
3.7. The Services may contain links to other websites. Those links are provided for convenience only and may not be current. Any hyperlinks or banners advertising other websites on the Website or from websites that are external to the Website which advertise the Website are not subject to Exam Success’s control or privacy standards, policies and procedures. Exam Success will not be responsible for the content or privacy practices associated with such linked websites and we recommend that you make your own enquiries as to the privacy and other policies of these third parties.
3.8. While using the Website and any associated Services, you must not:
(a) misuse any part of the Website by introducing viruses, trojans or other material that is malicious or technologically harmful;
(b) attempt to gain unauthorised access to any part of the Website, the server on which the Website is stored or any server, computer or database connected to the Website;
(c) engage in any activity that interferes with or disrupts the Services or the servers and networks which host the Services;
(d) attempt to circumvent, disable or otherwise interfere with any security related features of the Services or any features which prevent or restrict the use or copying of any content or enforce limitations on the use of the Services or the content of the Website;
(e) engage in any abusive or derogatory behaviour; or
(f) advocate, support or practise discrimination based on race, religion, age, national origin, language, gender, sexual orientation or mental or physical handicap.
(g) seek to transfer your communication with your Independent Tutor off the Exam Success Marketplace platform by providing your personal details or any other information to enable the tutor to contact you outside of the Exam Success Marketplace platform.
3.9. If you fail to comply with this Agreement, Exam Success may, at its absolute discretion and without liability:
(a) immediately temporarily or permanently withdraw your right to access and use the Services (including deletion of your account);
(b) take any other legal action against you; and
(c) refer or report any suspected fraudulent, abusive or illegal activity to relevant law enforcement authorities.
3.10. You acknowledge that we have no obligation to provide you with support of any kind.
4.1. In order to communicate with your Independent Tutor, you must register with Exam Success as a member by providing us with Registration Data as requested. You may not use one email address to register for multiple accounts.
4.2. You are not obliged to register as a member, but you may nonetheless be required to provide Registration Data in order to access the Services, including but not limited to making a Class booking via the Website.
4.3. If you are under the age of 18 years, we may ask you to confirm that you have your parents’ or guardians’ permission and that they have agreed to these Terms on your behalf. We will provide you access to the Website and your account on this basis.
4.4. If you are a parent or guardian who has permitted a person under the age of 18 (a 'Minor') to create an Exam Success account, you agree to:
(a) exercise supervision over the Minor's use of our Services and their personal account with Exam Success;
(b) assume all risks associated with the Minor's use of our Services and their Exam Success account, including the transmission of content or information to and from third parties via the Internet;
(c) assume any and all liabilities resulting from the Minor's use of our Services and their Exam Success account;
(d) ensure the accuracy and truthfulness of all information submitted to Exam Success and the Website by the Minor; and
(e) provide the necessary consents contained in these Terms on behalf of the Minor.
4.5. Subject to Clause 4.3, in the event that you provide Registration Data to us, you represent and warrant to us that the Registration Data provided is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of your Registration Data as necessary and / or as required by us.
4.6. If you provide us with Registration Data you consent to the possibility that:
(a) you may receive emails from us confirming the details of your registration and any purchases from the Services made through your account with Exam Success, providing you with necessary information relating to your access and use of the Services and any purchases from the Services made through your Exam Success account; and
(b) from time to time, we may email you regarding our Services or third-party products and services which we believe may be of interest to you, such as new products, features, special offers and updated information. The emails may contain code that enables our database to track your usage of the emails, including whether the email was opened and / or what links (if any) were clicked. We may combine that information with other information which we have about you and may use that information to improve your site experience and / or provide customised email communications to you.
5. Legal Capacity
5.1. Any goods and / or services purchased from an Independent Tutor on, or via, the Website is an acknowledgement by you that you meet the specified age requirement to transact with the Independent Tutor, accept these Terms and agree that these Terms are binding.
5.2. Exam Success reserves the right to take legal action and seek compensation from a parent or guardian of a Minor for any loss or damage we may suffer as a result of, or in connection with, any transaction entered into on, or via, the Website by a Consumer who is a Minor.
6.1. All prices displayed on the Marketplace are subject to change without notice, at the discretion of an Independent Tutor.
6.2. Where applicable, all prices listed on the Marketplace are in Australian Dollars unless otherwise specified by the Independent Tutor. Prices might otherwise be listed in British Pounds Sterling, Euros, US Dollars or any other nominated currency, as deemed necessary by Exam Success from time to time.
6.3. All prices listed on the Marketplace may either include or exclude GST (as applicable) and therefore are subject to the terms as displayed by the Independent Tutor from time-to-time.
6.4. Promotional discount codes may be provided to Consumers at the sole discretion of the Independent Tutor and, where appropriate, Consumers will be given written notice of the promotional discount codes at the time of the relevant offer.
6.5. Exam Success reserves the right, at its absolution discretion, to prohibit any Consumer from entering into a transaction via the Marketplace for any reason.
7.1. In order to make contact with an Independent Tutor for the purchase of goods and / or services on the Marketplace, you are required to register with Exam Success in accordance with Clause 4.
7.2. You acknowledge and agree that a listing on the Marketplace for the provision of goods and / or services by an Independent Tutor to you constitutes mere information and does not form part of any offer to sell the goods and / or services that may be provided by an Independent Tutor.
7.3. For the avoidance of doubt, all purchases and / or payments made pursuant to any agreement which utilises the Services is between you and the Independent Tutor and this agreement is made to the exclusion of Exam Success.
7.4. Exam Success operates an online platform that connects Independent Tutors and Consumers. Exam Success has their own selection process for a person to become an Independent Tutor on the site.
7.5. Exam Success communicates primarily with Consumers via email. By using our Services, you accept that communication with us will be mainly via electronic means. We will contact you by email or provide you with information by posting notices on the Website. It is your responsibility to ensure that correct contact details are registered, that Exam Success is given written notice of any changes to your contact details, and that you check the nominated email address regularly for any correspondence.
7.6. We accept no responsibility for purchases between a Purchaser and an Independent Tutor, and you agree to indemnify and hold us harmless against any and losses, liabilities, expenses, damages, costs, proceedings, demands or claims arising out of, or in connection with, the provision of the Website and the use of the Services. We will not be liable for such losses in accordance with Clause 10.
8.1. The processing of payments for goods and / or services can only proceed once a Consumer and Independent Tutor have entered into a separate, external agreement for the purchase of goods and / or services.
8.2. Exam Success is not responsible for the processing of payments in relation to the purchase of goods and services and therefore accepts no responsibility for transactions that occur outside the Marketplace.
8.3. Payment processing services for the Services are provided by Stripe. By placing an order and using Stripe, the Consumer agrees to be bound by the Stripe Terms (below), which may be modified by Stripe from time to time. As a condition of enabling payment processing services through Stripe, you agree to provide us with accurate and complete information about you and/or your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe.
(a) Stripe: https://stripe.com/au/legal
8.4. Despite Exam Success using reasonable endeavours to verify the identity of Independent Tutors on the Marketplace, you acknowledge that, to the extent permitted by law, Exam Success does not warrant the reliability, legitimacy, repute, or credibility of any Independent Tutor, nor the capacity, ability or willingness of the Independent Tutor to deliver or transact with you.
8.5. The Consumer bears sole responsibility for verifying any terms and conditions imposed by the Independent Tutor in relation to the sale of goods and/or services, including but not limited to the terms of payment, processing and handling fees, commissions and refund policies.
8.6. To the maximum extent permitted by law, Exam Success accepts no responsibility for any payment that occurs outside the Website and will not be held liable for any damages, liabilities, expenses, costs or losses suffered by Consumers as a result of engagement with an Independent Tutor via the Website, in accordance with Clause 10 and Clause 18.
9.1. We will, within a reasonable period of time, investigate any alleged error or other issue regarding any of the Services, provided that you notify us in writing within seven (7) days of becoming aware of the error or other issue, giving us all necessary information to be able to investigate the error or other issue. Notwithstanding, you agree that our liability will be limited in any event to the right to attempt redelivery of the Services to you.
9.2. You agree to use your reasonable endeavours to ensure that the information that you supply us or any Independent Tutor is complete and accurate and notify us (and, if relevant, the Consumer(s)) in writing if there is any change to the information supplied.
9.3. Except as provided in this Agreement, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided in accordance with this Agreement is given by us, other than as required by law. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.
9.4. Except as set out in this Clause 9, we give no further warranties. All implied warranties are hereby excluded.
9.5. You acknowledge that, to the extent permitted by law, Exam Success does not warrant that any information or content displayed or uploaded by Independent Tutors on the Website is accurate, complete, reliable, current, error-free, virus free or suitable for any particular purpose or use under any specific conditions, and that they are provided on an 'as is' and 'where is' basis;
10. Liability and Exclusions
10.1. We will not be liable to you or any third party for any loss, expenses, liabilities, costs, or damage caused by viruses, system failures or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of any part of the Website or downloading of any material or content posted on it, or on any website linked to it. We always recommend all Internet Consumers ensure they have up-to-date virus checking software installed.
10.2. You acknowledge that Exam Success provides a marketplace service for connecting Consumers and Independent Tutors to use the Services, and is in no way involved in purchases or payments in relation to goods and / or services displayed on the Website. To the fullest extent permitted by law, Exam Success is not responsible for dealing with, and not, liable for, any disputes or complaints made by you or any Consumer in relation to the goods or services sold, or via, the Website (including any dispute or complaint regarding refunds, payment, goods or services). You should address such complaints directly with the Independent Tutor.
10.3. You agree that Exam Success shall not be liable to you or any third party for any:
(a) indirect, consequential, special or exemplary losses, expenses or liabilities; or
(b) loss of profits, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, failure to realise anticipated savings, loss of opportunity, expectation loss or loss of production, arising out of, or in connection with, the provision or use of the Services, the Marketplace, the Website or these Terms.
10.4. Notwithstanding, you agree that in any event, Exam Success’s maximum aggregate liability to you or a third party under these Terms will be no more than the total amount spent by a Consumer on the Website in the preceding 12 months.
10.5. The Consumer acknowledges and agrees that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties. The provisions of this Clause 10 will continue to apply indefinitely after Termination of this Agreement.
11.1. The Consumer and Exam Success agree not to use or disclose Confidential Information, relating to or owned by the other, received or disclosed to it by the other party during the Term of this Agreement, save for use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure shall be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.
11.2. The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, or is received from a third party without any obligations of confidentiality, or is used or disclosed with the prior written consent of the owner of that information, or is disclosed in compliance with a legal requirement, or is independently developed by the receiving party.
11.3. Any Confidential Information will be returned or destroyed by the receiving party at the written request of the owner.
11.4. You allow us to refer to you in any publicity we engage in after we have provided you with the Services or, with your permission, during our provision to you of the Services.
11.5. In the event that the parties execute a separate confidentiality agreement, the terms of that agreement shall prevail over this Clause 11 only.
12.1. We may terminate this Agreement (or, at our discretion, cease to supply you with the Services) at our sole discretion if:
(a) it transpires that you have provided false or misleading information on the Website; or
(b) you are found to be offensive or abusive to an Independent Tutor or other Consumers.
12.2. Either party may terminate this Agreement immediately by written notice if the other is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach in writing (if it is capable of being remedied).
12.3. Either party may terminate this Agreement at any time upon four weeks’ written notice the other party.
13. Intellectual Property
13.1. You acknowledge that all Intellectual Property in any Material is the property of Exam Success (or its licensors) and your use and access to the Services and the Website does not give you any rights, title or interest in or to the Material. Unless expressly authorised either under this Agreement or otherwise by the licensors, you may not reproduce, adapt, modify, display, perform or distribute any Material or any part of any Material. Australian and international laws protect these intellectual property rights and nothing in this Agreement gives you any permission, right or licence to use any of the Intellectual Property.
13.2. Subject to the Copyright Act 1968 (Cth) and other relevant legislation, you may view the Services and its contents for personal and non-commercial use, however, you may not in any form or by any means reproduce, modify, distribute, store, transmit, publish or display within another website or create derivative works from any part of the Services or commercialise any information obtained from any part of the Services without the prior written consent of Exam Success or, in the case of third party Material, from the owner of the copyright and / or other Intellectual Property in that Material.
13.3. You may not modify or copy the layout or appearance of the Services or any computer software or code contained in the Services, nor may you decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Services.
14. Unavoidable Events
We will not be liable to you (or anyone else) if Exam Success is prevented from, or delayed in, performing its obligations under the Agreement or for failing to provide the Services by acts, events, omissions or accidents beyond its reasonable control ('Unavoidable Events'). Where an Unavoidable Event occurs, we will attempt to recommence provision of the Services as soon as reasonably practicable. In such circumstances, there may be a delay (sometimes a substantial delay) before we can start or continue providing the Services to you.
15.1. Any notice required to be given pursuant to this Agreement shall, unless stated otherwise in this Agreement, be in English and in writing (including email communications), and be sent to the other party marked to such address as either party may from time to time notify to the other in writing in accordance with this clause (if no such address has been provided then in the case of Exam Success, to firstname.lastname@example.org, and in the case of a Consumer, to that Consumer’s last email address registered with their account at www.examsuccess.com.au).
15.2. A correctly addressed notice sent by correctly addressed emails shall be deemed to have been received 24 hours after sending.
16. Dispute resolution
16.1. You agree that if you have a complaint about the performance of the Agreement or the Services provided that you will contact us at email@example.com in the first instance, and allow us reasonable time in which to consider your complaint, determine a possible solution and notify you of the solution.
16.2. If the complaint regards another Consumer’s conduct, we may attempt to resolve the issue by taking such actions as we deem necessary, in Exam Success’s absolute discretion, which may include the removal of a Consumer’s access to the Website.
16.3. If the complaint regards our own performance of the Agreement, such as regarding a technical issue on the Website, we will use our reasonable endeavours to attempt to resolve the issue with you.
16.4. For any complaint regarding payment in relation to an Independent Tutor, you agree and acknowledge that such complaints should be made directly to that Independent Tutor, and that Exam Success is indemnified from any losses, liabilities, damages, expenses or costs you or a third party may suffer in accordance with Clauses 10 and 18.
16.5. If, following a purchase, you feel the goods and / or services:
a) were not of acceptable quality;
b) were not fit for its purpose; or
c) did not match its description, you may have rights under the Australian Consumer Law to have the goods and / or services replaced by the Independent Tutor, or have the price you paid for the goods and / or services refunded by the Independent Tutor.
16.6. Nothing in these Terms excludes, restricts or modifies the consumer guarantees provided for under the Competition and Consumer Act 2010 (Cth) ('Australian Consumer Law').
Effective 21st Day of February 2014
1. Uploading Material - Licence
1.1 By uploading Material to the Website, you grant us a non-exclusive, worldwide, perpetual, unlimited, irrevocable all media and all format right to:
(a) Reproduce it, and to edit and/or adapt it as is reasonably necessary for the purposes of the Website;
(b) Communicate it, and all other intellectual property embedded in it, to the public from the Website and by any other means of electronic communication; and
(c) Sublicense its use to other users of the Website and use it, whether in whole or part, whether on its own or in combination with other content and in any medium, for the purposes of promoting the Website, Exam Success or our services.
1.2 To the extent that you have any “moral rights” under Part IX of the Australian Copyright Act 1968 (the “Act”) in relation to attribution for, and to the treatment of, Material, you consent to any dealing with the work in accordance with this agreement (including by not attributing you as the author of Materials, or by adapting or altering Material) that might otherwise be an infringement of such rights.
1.3 We may require you confirm these Terms, or, as a condition of uploading Material, to agree related terms and conditions in connection with that upload, each time you upload Material.
1.4 We are not obliged to publish or make accessible on the Website any Material that you upload, and we can take down and cease to make accessible any Material at any time at our discretion.
2. Your obligations
2.1 You agree that:
(a) you will provide any reasonable assistance, requested by Exam Success, in relation to the communication of Material to the public from the Website;
(b) you will be solely responsible for all obligations to third parties (contractual or otherwise) that may arise as a result of our communication of the Material to the public via the Website.
Dated the 29th Day of June 2017
1. Any writing club tutoring sessions will be conducted through online video conferencing software.
2. Writing Club sessions must be booked using the link provided in the writing club area on examsuccess.com.au.
3. Session times are strictly 60 minutes.
4. If you miss a session that you have booked, then you would forfeit that session.
5. If you turn up late to your session anytime from its starting time, the session will still run, however the 60 minute session will be counted from the original scheduled time. That means, if your scheduled session was at 2:00pm and you turned up to the session at 2:10pm, this means your session will still end at 3:00pm.