WRITING APP WEBSITE TERMS AND CONDITIONS OF USE
The following terms (the “Terms”) set out the basis on which 12Descartes Pty Ltd t/a Exam Success (ABN 45 147934334) (including any licensees and assigns, and also referred to as “Exam Success, “we”, “our” or “us”) agrees to make the services of the website at the URL www.examsuccess.com.au/practice-writing-app (the “Website”, which includes its content and any and all digital platform over which we offer our services) available to you.
Incorporated into the Terms by reference are:
• any other instructions about using this Website that are found elsewhere on this Website, for example our editorial policy and style guide (together our “Editorial Policy”),
By selecting “I Agree”, you agree that a legally binding agreement will be formed between you and Exam Success on these Terms. If you do not agree with these Terms, do not click the “I Agree” button and do not use the Website.
1. Defined terms
1.1 Unless the context requires otherwise, any capitalised words or phrases used in these Terms and which are not otherwise defined have the meaning set out in paragraph 21 (Definitions) below.
2. Permitted uses of the Website
2.1 You must only use the Website for either:
(a) browsing the content on the Website; or
(b) if you are a registered member, you can use the Website:
(i) to contribute to the Website by uploading Material to the Website so that we can communicate it to the public for others to access and use;
(ii) to access and download Material published in the Website for that purpose;
(iii) to monitor your credit account where you have authorised us to post Material for sale or distribution via the Website;
(iv) to communicate with us in relation to use of the Website; and
(v) undertaking any other act that is expressly authorised by us,
but always in accordance with these Terms.
2.2 All rights not expressly granted to you under clause 2.1 are reserved by Exam Success. Your use of the Website does not give you any proprietary rights in relation to the Website. For example you cannot deal in any way with any content available on our website other than by way of a legitimately acquired download licence from us, or otherwise as permitted by law.
3. Registration Details
3.2 You may only register and use the Website if (being a natural person) you are at least 13 years old, and if you are between 13 and 18 years old, your registration must be created on your behalf by your parent or legal guardian.
3.3 You can only ever have one account and one identity on the Website. Membership at any time is at our discretion. Your membership will only be completed when you have registered and provided the required information. Once your registration is complete, you may access the member’s section of the Website using your username and password. You must maintain the confidentiality of your username and password and use reasonable steps to protect them from unauthorised access, disclosure or use. You are solely responsible for any access to the Website or transactions that occur on the Website when it is accessed with your username and password. You may register for membership regardless of where you live, however, any Royalty will be paid to you in only according with paragraph 5 and in Australian dollars.
3.4 When uploading Material to, or downloading Material from the Website, and from time to time, you will be required to agree to certain additional terms and conditions. If there is an express conflict between the Upload Terms or Download Terms and these Terms, these Terms are superseded only to the extent of your relevant use of the Upload Terms or Download Terms.
3.5 We may cancel your membership at anytime if you ask us to or if the agreement between you and us is terminated.
4. Setting Up Your Upload Account
4.1 From time to time, and provided you are registered as a member of the Website, you can upload Material to the Website for communication to the public by providing the additional details we require to establish you upload account. You must keep such information correct and up to date.
4.2 You agree that you, and not Exam Success, bear sole responsibility for:
(a) the legitimacy and accuracy of any Material that you upload; and
(b) ensuring that your Material complies with these Terms including the Editorial Policy or other published policy of ours [https://www.examsuccess.com.au/practice-writing-app/editorial].
5. Uploading Material - Licence
5.1 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.
5.2 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.
5.3 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.
5.4 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.
6. Your obligations
6.1 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.
7. Your promises to us
7.1 By registering to become a member of the Website, you promise, represent and warrant that you have the right to enter this agreement with Exam Success and carry out your obligations as a member of the Website.
7.2 By uploading (or authorising the uploading of) Material to the Website, you promise us that:
(a) you own all relevant rights (including copyright) in the Material or have obtained all relevant rights to enable you to submit the Material to us and to authorise us to use the Material in accordance with these Terms;
(b) our reproduction and communication of Material to the public or other use of the Material in accordance with these Terms will not infringe the proprietary rights (including, without limitation, any intellectual property rights) or rights of publicity and privacy of any other person or legal entity;
(c) the Material complies with our Editorial Policy;
(d) neither the Material, any electronic information or material that you provide to Exam Success contain any viruses or other malicious computer programs or code that may damage, modify or delete any of the content on the Website or affect the proper operation of the Website; and
(e) you have the right to, and will, fulfil all your obligations to any third parties with rights in the Material.
8. Your indemnities to us
8.1 You indemnify Exam Success (including our officers, employees, agents, contractors or related companies, together the “Indemnified”)) against any and all liability, loss, claims, demands and/or expenses which any of the Indemnified may incur as a result of any breach by you of your agreement with us.
9. No monitoring by Exam Success
9.1 Exam Success has no obligation to review or monitor any Material submitted by you to the Website and you must not assume that we will do so.
9.2 Notwithstanding clause 9.1, Exam Success reserves the right to, in its sole discretion, monitor or review the contents of the Website (or any other medium on which the Material is communicated to the public) including any Material and to delete or refuse to communicate Material to the public or to take any other action it deems necessary if it determines, in its sole discretion, that Material does not comply with these Terms including the Editorial Policy.
10. Limitation and exclusion of liability
10.1 Exam Success will not (or deemed to) be liable for any default, failure or delay resulting from:
(a) a Force Majeure Event; or
(b) any unauthorised acts or omissions of third parties using the Website.
10.2 The Website is presented 'as is' without representations of any kind including, without limitation, representations about fitness for a particular purpose, non-infringement, security or accuracy. You acknowledge your understanding that there are inherent risks, which are outside of our control, in the operation of any website or the transmission of content over the internet including delays, errors, faults, failures or downtime of the Website or of third party technology. Accordingly we do not warrant that the Website or services provided from the Website will be free from such risks or that your use of the Website will be uninterrupted or error free. To the maximum extent permitted by law and save for these Terms, all other terms (including any implied terms), conditions, warranties, statements, assurances and representations in relation to any agreement between you and us are expressly excluded.
10.3 If any of the exclusions or limitations set out in this clause are declared illegal or void or you claim that there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by these Terms, then to the maximum extent permitted by law, our entire liability and your exclusive remedy is limited, at our discretion, to:
(a) with respect to the supply of goods:
(i) the re-supply of the goods; or
(ii) the payment of the cost of having the goods re-supplied; and
(b) with respect to the supply of services:
(i) the re-supply of the services; or
(ii) the payment of the cost of having the services re-supplied.
10.4 Subject to the preceding, in no event will we (including our officers, agents, employees, contractors or related bodies corporate) be liable to you for any:
(a) direct loss; or
(b) indirect or consequential loss,
even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of the agreement between you and us.
10.5 Subject to clause 11 our liability to you will not exceed an amount greater than the total Royalty paid by us to you in respect of any Material uploaded by you to the Website at the time of our breach of the agreement between you and us.
11. Royalty and Accounting
11.1 If users legitimately download and pay for Material uploaded by you, we will credit you with a Royalty for such use, calculated according to our PaymentPolicy, and we will account to you as set out below.
11.2 After an initial 60-day period following the public launch of Exam Success, statements of account will be made available to you within thirty (30) days after the end of each calendar month. Payments for each month's Royalty (if any) will be made within thirty (30) days after the end of such calendar month. Payment will be made to the valid PayPal account you provided in your Exam Success registration account details.
11.3 Without limiting the indemnity in paragraph 8, we can set off your Royalty against any liability you incur under this agreement and suspend payment of any Royalty to you if you are in breach, or, if we have reasonable grounds to suspect you are in breach.
12.1 We may terminate the agreement between you and us immediately by notice. Following such termination we will account to you for any Royalty owed by us to you.
12.2 You may terminate the agreement between you and us by 30 days notice in writing to us.
13.1 The relationship between you and us is one of independent contractors and nothing in these Terms constitutes a relationship of employer and employee, principal and agent, partnership or joint venturers between you and us.
14.1 Any provision of the agreement between you and us which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of the agreement between you and us nor affect the validity or enforceability of that provision in any other jurisdiction.
15. Governing law and jurisdiction
15.1 All matters arising from or relating to the agreement between you and us and all the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance and enforcement will be governed by the laws of the State of New South Wales, Australia without regard to conflicts of law principles. The parties agree to unconditionally submit themselves to the exclusive jurisdiction of the courts of New South Wales.
16. Assignment and novation
16.1 You may not assign any rights or transfer any benefits under the agreement between you and us without our prior written consent.
17.1 Any delay or failure by us at any time to exercise any power or right under the agreement between you and us is not a waiver of our rights at any later time to insist on performance of that or any other provision of the agreement between you and us.
18.1 Notifications and communication from us will be delivered to you by email at the address you provide us when you register. We are not responsible to notify you in any other way other than by email. We will not be responsible for any misuse of information you provide us via email.
19.1 In the agreement between you and us, the following words will be taken to have these meanings:
(a) “Editorial Policy” means the editorial policy published on the Website, as may be amended from time to time;
(b) “Force Majeure Event” means an event, occurrence or cause beyond the control, and not caused by the negligence, of Exam Success including, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions and any errors, faults, failures or down time of the Website or of third party technology providers including, but not limited to, service providers such as internet service providers and carriers;
(c) “Material” means any review, problem, suggestion, idea, solution, question, answer, resource, class note, course outline, comment, feedback, message, image, text or other material submitted, uploaded, communicated, linked, emailed or otherwise distributed or published by you on our Website.
(d) “Net Receipts” means the amount actually received and held by us from the successfully completed download of your Material after deduction of any third-party costs, commissions, discounts, rebates, credit card charges, taxes, levies or similar charges levied upon us by any third party in respect of such downloaded Material.
(e) “Royalty” means the amount published by us from time to time on the Website, calculated as a percentage of Net Receipts.
(f) “You” means you the person who enters an agreement with Exam Success on the basis of these Terms or, if the context requires, the person who completes registration on behalf of another person or entity.
19.2 In these Terms: any terms defined in the Act have the same meaning in this agreement unless otherwise defined or the context indicates otherwise; the singular includes the plural and vice versa; and the words “includes” or “including” are not to be construed as terms of limitation.