Terms of Use

Definitions and interpretations

Definitions

 

In these Customer Terms:

  1. Abrility is a made-up word that combines "Ability" and "Brilliant".

  2. Abrility Content means Content published or otherwise provided by or through Abrility or its agents, including through the Website, the Services or the App.

  3. App means any application, online platform or interface through which the Abrility Content and Services are accessible.

  4. Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in New South Wales are open for business.

  5. Content means all software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video, photos, images, reviews, ideas, and other data or copyrightable materials or content.

  6. Contract means the agreement between the Customer and Abrility pursuant to an Order Form for the supply of the Services, or any other goods or services, such supply being governed by these Customer Terms.

  7. Course means a training course or other resource for instructing, educating, training, learning and/or tutoring and includes mobile applications and related and/or supporting materials.

  8. Customer means any person who orders, purchases, applies for, commences, initiates a trial, test or other preliminary use of or otherwise uses Abrility’s learning management facility, Abrility Content, the Website, the App, any Course, the Materials, the Software or any of the Services, and includes any representative authorised by such person.

  9. Customer Content means Content (including Customer Data) uploaded, transmitted or posted to the Services by the Customer or by any account of the Customer.

  10. Customer Data means non-public data provided by the Customer to Abrility to enable the provision of the Services.

  11. Customer Terms means these Customer Terms, as amended from time to time.

  12. Fees has the meaning given in clause 7(a).

  13. GST means goods and services tax or value added tax or other equivalent indirect tax.

  14. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or any replacement or other relevant legislation and regulations;

  15. Instructor means, as applicable, the teacher, author, designer, creator or provider of a Course.

  16. Intellectual Property means all intellectual property rights, including the following rights:

    1. copyright (as defined in the Copyright Act 1968 (Cth));

    2. design, patent, trademark, semiconductor, circuit layout or plant breeder rights (whether registered, unregistered or applied for);

    3. trade, business, company or domain names and any right to have confidential information kept confidential;

    4. know-how, inventions, processes (whether in writing or recorded in any form); 

    5. any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields; and

    6. any application or right to apply for registration of any of the rights referred to in this definition of Intellectual Property, whether or not such rights are registered or capable of being registered.

  17. Materials means documents, information, materials (including marketing materials and the Abrility Content) and communications, provided or made available by or through Abrility, including through the Website, the App, the Services and any learning management portal.

  18. Order Form means a document or order form between Abrility and the Customer setting out the details of the Services, which may include details of the Course(s), Fees, Term, Software and other related matters and which may be in the form of a written document or available online, including on or through the Website or the App.

  19. Privacy Policy means the Abrility privacy policy as amended from time to time.

  20. Services means all services supplied by Abrility to the Customer via the Website, the App or other means, including marketing, promoting, facilitating, offering, hosting and providing Courses, providing access to Software and access to or licensing of specific Courses, as may be detailed more specifically at the discretion of Abrility in an Order Form.

  21. Software means the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.

  22. Term has the meaning given in clause 9(a).

  23. Website means Abrility’s website at https://www.abrility.com/.

 

Interpretation

 

The following rules of interpretation apply unless the contrary intention appears:

  1. the singular includes the plural and vice versa;

  2. words that are gender neutral or gender specific include each gender;

  3. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

  4. the words 'such as', 'including', 'particularly' and similar expressions are not used as nor are intended to be interpreted as words of limitation.

  5. a reference to:

    1. a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;

    2. a party includes its successors and permitted assigns;

    3. a document (which may be in electronic form) includes all amendments or supplements to that document;

    4. a clause, term or party is a reference to a clause or term of, or party to these Customer Terms or the Contract;

    5. a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a rule of an applicable financial market and is a reference to that law as amended, consolidated or replaced;

  6. headings are used for convenience only and do not affect the interpretation of these Customer Terms;

  7. an agreement on the part of two or more persons binds them jointly and severally; and

  8. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Customer Terms.

 

Application

  1. These Customer Terms apply to your use of the Services. When reference is made to “you” or “your” in these Customer Terms, it is a reference to the Customer.

  2. When reference is made to “we” or “us” or “our” in these Customer Terms, it is a reference to Abrility.

  3. Where a document provided by you purports to be made on or subject to terms and conditions other than these Customer Terms, such other terms and conditions are disregarded and form no part of the Contract.

  4. Where there is any inconsistency between these Customer Terms and any other agreement you enter into with us, these Customer Terms prevail to the extent of the inconsistency.

 

 

Services and support

 

  1. Subject to these Customer Terms, we will use commercially reasonable efforts to provide the Services to you.

  2. As part of the registration process, you will create an administrative user name and password for your Abrility account. We reserve the right to refuse registration of, amend or cancel user names we deem inappropriate.

  3. The Services may extend to any related items quoted by us in the Order Form and billed by us.

  4. We may update or modify the Courses, Materials or Services or discontinue their availability at any time, but will provide reasonable notice to you before we do so. 

Restrictions and responsibilities

 

  1. You acknowledge that you have read our Privacy Policy and that you agree with the content of and to be bound by that Privacy Policy, which is incorporated by reference into these Customer Terms.

  2. You represent, warrant and covenant that you have read, understood, and agree to be bound by these Customer Terms;

  3. You understand and agree that:

    1. the Website, technology used in connection with the Website, the App, the Services, the Software, the Courses and the Materials are provided by us or third-party providers (including Instructors) and are the copyrighted works of Abrility and/or such third parties;

    2. Instructors may choose to terminate their relationships with us and become inactive (we do not guarantee Instructor or Course availability and we are not liable for any issues relating to Instructor or Course availability);

    3. you assume any and all risks from any meetings or contact you have with any Instructors or other Customers; and

    4. you are responsible for your account with us and for all uses of the account (including when your account is used without your knowledge or consent).

 

Confidentiality

  1. Each party (the Receiving Party) understands that the other party (the Disclosing Party) may disclose to it sensitive or confidential information (Confidential Information).

  2. Confidential Information of Abrility includes non-public information regarding features, functionality and performance of the Services. Your Confidential Information includes Customer Data. 

  3. The Receiving Party must: 

    1. take reasonable precautions to protect the Confidential Information; and

    2. not use (except in performance of the Services or as otherwise permitted in these Customer Terms) or divulge to any third person any such Confidential Information. 

  4. Clause 5(c) will not apply with respect to any information which the Receiving Party can show:

    1. is or becomes generally available to the public (other than as a result of a breach of these Customer Terms); or 

    2. was in its possession or known by it prior to receipt from the Disclosing Party; or 

    3. was rightfully disclosed to it without restriction by a third party; or

    4. was independently developed without use of any Confidential Information of the Disclosing Party; or

    5. is expressly excluded by these Customer Terms; or 

    6. is required to be disclosed by law (in which case, the Receiving Party must not disclose any Confidential Information until the Disclosing Party has a reasonable opportunity to take such action as it considers appropriate in the circumstances).

 

Intellectual Property

  1. We and or our licensors (as applicable) own and retain all right, title and interest in and to:

    1. the Services and Software (including all improvements, enhancements or modifications to the Services and Software);

    2. the Website and the App;

    3. any software, applications, inventions or other technology developed in connection with the Services;

    4. the Materials, and 

    5. all Intellectual Property in or related to any of the foregoing. 

  2. You may only use our Intellectual Property in accordance with these Customer Terms.

  3. Arility Content remains the proprietary property of Abrility (or its agents, affiliated third party providers and suppliers, as applicable) and is protected, without limitation, pursuant to applicable law.

  4. Abrility is not required to treat as confidential any suggestion or idea provided by you or any other Customer (Feedback), and nothing in these Customer Terms or in the parties’ dealings arising out of or related to these Customer Terms will restrict Abrility’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to you or any other Customer providing Feedback.

  5. You grant us the right to use the Customer Content in our sole discretion. You represent and warrant that you have all licenses, rights, consents and permissions necessary to grant such right and that we will not need to obtain any licenses, rights, consents or permissions from, or make any payments to, you or any third party, or have any liability to you or any other party as a result of any use of the Customer Content.

  6. We grant you a limited, non-exclusive, non-assignable, revocable, non-transferable license (without right to sublicense) for the Term to access and use the Abrility Content (after the required Fees have been paid), solely for the purpose of education or training through the Services, in accordance with these Customer Terms and any conditions or restrictions associated with particular Courses or Services. All other uses are prohibited without our express written consent.

  7. You must not reproduce, copy  redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, or otherwise transfer or use any Abrility Content, in whole or in part, other than as expressly authorised under these Customer Terms or as separately authorised by us in writing.

  8. Notwithstanding any other provision in these Customer Terms:

    1. we reserve the right to revoke the license to access and use the Content granted to you as set out in these Customer Terms; and

    2. subject to the Privacy Policy, Abrility has the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer Data and data derived therefrom), and may (during and after the Term):

      1. use such information and data to improve and enhance the Services;

      2. for development, diagnostic and corrective purposes in connection with the Services and other Abrility offerings; and 

      3. disclose such data solely in aggregate or other lawful de-identified form.

  9. Abrility does not screen the Customer Content or Abrility Content. All use of the Customer Content and Abrility Content by you is at your own risk. We have no responsibility or liability for such use. In particular, no review or posting or appearance of the Customer Content or Abrility Content on the Services or though the Services is intended to act as an endorsement or representation that any Customer Content is free of violation of any copyright, privacy or other laws or will suit a particular purpose or be accurate or useful.

Pricing and payment of fees

  1. You must pay us the fees described in the Order Form or through the online order process for the Services (Fees) in accordance with the terms in the Order Form or as stipulated in the order process, without set off or deduction. 

  2. If you require access or use of the Services for additional user(s) or if your Services needs or use constitute a requirement to pay additional fees, you will be billed for such usage and must pay the additional fees in the manner reasonably required by us. Any such additional access or use of the Services by you will be subject to these Customer Terms.

  3. We may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by us fourteen (14) days after the issue date of the invoice without set off or deduction. Unpaid amounts are subject to a charge of 1.5% per month on any outstanding balance, or the maximum permitted by law (whichever is greater), plus all expenses of collection (including legal fees on a full indemnity basis) and may result in immediate termination of the Services.

  4. You must pay the Fees for Courses that you purchase and authorise Abrility to charge your credit card for such Fees. If your credit card is declined, you must pay Abrility the Fees within thirty (30) days of notification from us, and pay a late payment charge of 1.5% per month, or the maximum permitted by law, (whichever is greater) which may be charged at our discretion.

 

 

GST

 

In this clause:

  1. GST means GST as defined in the GST Act;

    1. words or expressions used in this clause which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires;

    2. any reference to GST payable by a party to these Customer Terms includes any corresponding GST payable by the representative member of any GST group of which that party is a member;

    3. any reference to an input tax credit entitlement by a party to these Customer Terms includes any corresponding input tax credit entitlement by the representative member of any GST group of which that party is a member; and

    4. if the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.

  2. Unless GST is expressly included, the consideration to be paid or provided under any other clause of these Customer Terms for any supply made under or in connection with these Customer Terms does not include GST.

  3. To the extent that any supply made under or in connection with these Customer Terms is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided.  A right to payment under this clause is subject to a valid Tax Invoice being delivered to the recipient of the taxable supply.

  4. To the extent that a party to these Customer Terms is required to reimburse or indemnify another party to these Customer Terms for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.

 

 

Term and termination

 

  1. Subject to early termination, as provided below, the Contract continues for the period set out in the Order Form.

  2. In addition to any other remedies a party may have, either party may terminate the Contract upon thirty (30) days’ notice if the other party materially breaches any of these Customer Terms and that party fails to remedy the breach within 14 days of that party being notified in writing to do so.  

  3. We may terminate the Contract immediately and without notice in the case of non-payment by you. 

  4. Notwithstanding the foregoing, you must pay at least the amount due for the Services up to and including the last day of the Term. 

  5. Upon any termination, we may, but are not obligated to (unless required by applicable laws), delete stored Customer Data.

  6. Except where an exclusive remedy may be specified in these Customer Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Customer Terms, by law, or otherwise. 

  7. Except as set forth in this clause, once the Contract terminates: 

    1. the rights and licenses granted by Abrility to you will cease immediately; 

    2. you must cease all use of the Services and any Materials; 

    3. you must pay to us any and all outstanding Fees;  

    4. you are required to delete the Services and any Materials made available to you under the Contract, including any Abrility Confidential Information from your systems as applicable (including any third party systems operated on your behalf) and, if requested by us, provide written certification to us that you have done so at our request; 

    5. you undertake not to attempt to access the Services or any data stored in the Services (except in accordance with our Privacy Policy), any Materials, the Website or the App after the date of termination; and

    6. all parts of these Customer Terms, which by their nature should survive termination, will survive termination, including accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.

  8. If we become aware of a breach by you of these Terms, then we may suspend your applicable user accounts. The duration of any suspension will be until the applicable breach which caused the suspension has been cured.

 

 

Information and content of the Services

 

  1. Whilst all Materials and other information communicated to you via the Services, Instructors or our employees, contractors, agents or representatives are provided in good faith and are believed to be accurate and current as at the date of publication, presentation or communication, we provide no warranty or guarantee that any Materials, information on linked websites or information otherwise communicated to you will be accurate or complete.

  2. We are not responsible or liable for any interactions between any Instructors and Customers who purchase or use an Instructor’s Course via the Services. 

  3. We are not responsible for disputes, claims, losses, injuries or damages of any kind that might arise out of or relate to conduct of Instructors or Customers, including any Customer's reliance upon any information provided by an Instructor.

  4. By using the Services, you may be exposed to content that you consider objectionable. We have no responsibility to keep such content from you and no liability for your access or use of any Course or content, to the extent permissible under applicable law.

  5. You acknowledge and agree that at no time prior to entering into the Contract have you relied on the skill or judgment of Abrility or any of our employees, contractors, agents or representatives and that it would be unreasonable for you to rely on any such skill or judgment; and 

 

 

Warranty

  1. This provision prevails over all other provisions in these Customer Terms, and, to the maximum extent permitted by law, states our entire liability, and your sole and exclusive remedies:

    1. for the performance, non-performance, purported performance or delay in performance of these Customer Terms by us; or

    2. otherwise in relation to these Customer Terms or the entering into or performance of these Customer Terms.

  2. Nothing in these Customer Terms excludes or limits your statutory rights as a consumer or our liability for:

    1. fraud; 

    2. death or personal injury caused by a breach of our obligations arising from the express or implied terms of these Customer Terms to take reasonable care or exercise reasonable skill or from a common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); 

    3. any breach of any of our obligations that are implied by law; or 

    4. any other liability which cannot be excluded or limited by applicable law.

  3. To the maximum extent permitted by law, we do not warrant and we exclude all liability in respect of the accuracy, quality, completeness, fitness for purpose or legality of the Materials and other information communicated to you via the Services, the Website, the App, Instructors or our employees, contractors, agents or representatives;

  4. We exclude all liability of any kind for the transmission or the reception of or the failure to transmit or to receive any Material of whatever nature through the Services, Website or the App;

  5. To the maximum extent permitted by law, in no event shall we, our affiliates and related entities be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the Materials, the Services, the Website, the App or these Customer Terms.

  6. Our total liability in respect any Services we may provide under these Customer Terms is limited to supplying the services again, or the payment of the cost of having the Services supplied again.

Indemnity

 

You indemnify and hold harmless Abrility, its Instructors, affiliates and respective officers, directors, agents and employees against any liability, claim, loss, damage or expense (including reasonable legal fees), of every nature and kind in law or equity, related to, arising out of or in connection with:

  1. a breach by you of any of obligations set forth herein; 

  2. any use, misuse or misappropriation of any information obtained from the Materials, the Services, the Website or the App in breach of any of your covenants, obligations or representations herein; and

  3. any failure by you to comply with any applicable laws or regulations regarding use of the Materials, the Services, the Website or the App.

 

 

Links to other websites

 

  1. The Materials, the Services, the Website or the App may contain links and pointers to other websites operated by third parties, which are included solely for your convenience. Links to third party websites do not constitute endorsement, sponsorship or approval by us of the content, policies or practices of those third parties, nor the content available on or for download from those third party sites.

  2. You agree that, by accessing any third party linked website, you do so at entirely your own risk.

  3. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with, use or reliance on any goods or services available on or through any third party website.

Disputes

 

  1. If you believe that a dispute has arisen between you and us under or in connection with these Customer Terms, you must not commence legal proceedings in respect of the dispute unless and until you have first complied with the following:

    1. you must give notice to us specifying the nature of the dispute (Dispute Notice).

    2. Within ten (10) Business Days after the Dispute Notice is given, (or such longer period as is agreed between the parties), the parties must negotiate in good faith and seek to resolve the dispute.

    3. If the dispute is not resolved within twenty (20) Business Days after the Dispute Notice is given (or such longer period as is agreed between the parties), the dispute must be referred to mediation administered by the Australian Disputes Centre (ADC) and conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time.

    4. If the dispute is not resolved within forty (40) Business Days after the Dispute Notice is given, (or such longer period as is agreed between the parties), either party may refer the matter to arbitration.

    5. The arbitration will be conducted in accordance with the ACICA Arbitration Rules which are current as at the date on which the Dispute Notice was given.  The seat of the arbitration will be Sydney, Australia, and the language of the arbitration will be English.  The number of arbitrators will be one. 

  2. No provision in this “Disputes” section prevents either party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute.  In respect of any such proceedings, the parties agree that:

    1. the Supreme Court of New South Wales shall have exclusive jurisdiction in respect of those proceedings; 

    2. such proceedings will be limited to the determination of an application for urgent injunctive, interlocutory or declaratory relief in respect of the dispute; and

    3. by agreeing to, or by taking action under paragraphs (i) and (ii) of this “Disputes” section, the parties do not intend to relinquish or otherwise adversely affect their rights to have disputes resolved in accordance with this “Disputes” section. 

 

 

Updates

 

  1. We reserve the right in our sole discretion to modify and/or make changes to these Customer Terms at any time. We will notify you in writing if we make any material change to these Customer Terms which meaningfully reduces your rights.

  2. Your continued use of our Services after changes become effective will mean that you accept those updated Customer Terms.  

  3. You must visit the Services and the Website or the App regularly to ensure that you are aware of the latest version of the Customer Terms, as any revised Customer Terms will supersede all previous Customer Terms.

 

 

General

16.1 Severability

If any provision in these Customer Terms is unenforceable, illegal or void, or makes these Customer Terms or any part of it unenforceable, illegal or void, then that provision is severed and the rest of these Customer Terms remain in force.

16.2 Entire understanding

  1. These Customer Terms:

    1. are the entire agreement and understanding between the parties on everything connected with the subject matter of these Customer Terms; and

    2. supersedes any prior agreement or understanding on anything connected with that subject matter.

  2. The parties acknowledge that no reliance has been placed on any prior agreement, understanding or representation.

 

16.3 Assignment 

  1. You may not assign these Customer Terms without our prior written consent.

  2. We may assign our rights and obligations under these Customer Terms in our sole and absolute discretion. 

 

16.4 Waiver

  1. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

  2. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

  3. A waiver is not effective unless it is in writing.

  4. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

 

16.5 Notices

  1. A notice or other communication connected with these Customer Terms (Notice) has no legal effect unless it is in writing.

  2. In addition to any other method of service provided by law, the Notice may be sent by email or by prepaid post to, or delivered at, the address of the Party set out in the Order Form, or subsequently notified.

  3. If the Notice is sent or delivered in a manner provided by clause 16.6(b), it must be treated as given to and received by the party to which it is addressed:

    1. if sent by post, on the second Business Day (at the address to which it is posted) after posting; and

    2. if otherwise delivered before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

  4. A Notice by a party may be given and signed by its solicitor.

 

16.6 Nature of relationship

No relationship of agency, partnership, joint venture, or employment is created as a result of the Contract or these Customer Terms and you do not have any authority of any kind to bind us in any respect whatsoever.

 

16.7 Our Affiliates

Each of our affiliates (meaning any entity that directly or indirectly controls, is controlled by, or is under common control with another entity) may enforce any provision of the Contract or these Customer Terms as if it were Abrility.

 

16.8 Governing law and jurisdiction

These Customer Terms are governed by the law in force in New South Wales, Australia and the Parties submit to the non-exclusive jurisdiction of the courts and tribunals of that State and of the Commonwealth of Australia.