Updated the 29th Day of May 2018
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. There are additional terms and conditions (see below) for assessments products, writing club products and use of writing app.
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 where applicable, GST is added. We endeavour to ensure that our price list is current. Our price list can be accessed from our web pages 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. If you are under 13, your parent or legal guardian must create an account for themselves and be the contact person for any communication.
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 where applicable, GST is added. Our price list can be accessed from our web pages 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.
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.
Additional Terms & Conditions for Assessments
1. You have 30 days from the date of purchase of your assessment service to submit your test papers for assessment. If you do not submit your assessment papers by then, your assessment will not be completed.
2. For assessments, if you do not wish to go through with the assessment after purchasing and have not sent through your test papers for assessment, email us within 30 days from the date of purchase requesting a refund and we will refund your purchase price less a $60 administration fee.
Additional Terms & Conditions for Writing Club
1. All writing club 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. Practice writing session times are strictly 60 minutes.
4. If you miss a session that you have booked and not cancelled within the stipulated time frame as shown on your writing club dashboard, then you would forfeit that session.
5. If you turn up late to your session anytime from it's 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.
Additional Terms & Conditions for Writing App
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:
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. If you are under 13, your parent or legal guardian must create an account for themselves and be the contact person for any communication.
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.
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.
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.
11.1 We may terminate the agreement between you and us immediately by notice.
11.2 You may terminate the agreement between you and us by 30 days notice in writing to us.
12.1 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.
13.1 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.
14. Governing law and jurisdiction
14.1 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 Victoria, Australia without regard to conflicts of law principles. The parties agree to unconditionally submit themselves to the exclusive jurisdiction of the courts of Victoria.
15. Assignment and novation
15.1 You may not assign any rights or transfer any benefits under the agreement between you and us without our prior written consent.
16.1 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.
17.1 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.
18.1 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) “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.
18.2 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.