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Surge Online Courses Terms and Conditions


 

This agreement is made on the date it is signed by the (Agreement)

between

Bree Wailes ABN 94 823 319 487 of [address] (Surge)

and

the Customer who executes this Agreement (Customer).

BACKGROUND

  1. The Customer wishes to appoint Surge to supply the Content.

  2. Surge has agreed to supply the Content on the terms and conditions set out in this Agreement.

OPERATIVE PROVISIONS

  1. Definitions and interpretation

    1. Definitions

In this Agreement, unless the context indicates the contrary:

Commencement Date means the date that this agreement is executed by the Customer. 

Confidential Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:

  1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and

  2. information developed independently by a party.

Content means any and all data, text, software, images, audio or video material and other content, in any medium, delivered to the Customer by Surge in connection with the Course pursuant to this Agreement. 

Course means the applicable online course, such as events and wedding sales courses, provided by Surge which delivers the Content, as advertised or notified by Surge to the Customer from time to time and for which the Customer has paid the Fees. 

Fees means the fees for the Course as notified by Surge to the Customer in in writing.

Force Majeure Event means any event beyond the control of the relevant party.

Format means online video tutorial via the Website. 

GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.

Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.

Website means the website located at www.wesurge.com.au.

  1. Interpretation

Unless the context requires otherwise:

  1. a reference to a person includes a corporation or any other legal entity;

  2. the singular includes the plural and vice versa;

  3. headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

  4. the term "includes" (or any similar term) means "includes without limitation"; and

  5. a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

  1. Term

    1. This Agreement begins on the Commencement Date and continues for duration of the applicable Course (Term).

    2. In the event that Surge has provided this Agreement and the Customer thereafter pays the Fees, the Customer will be deemed to have accepted the terms and conditions. 

  2. Content licence

    1. Surge grants to the Customer a non-exclusive, world-wide, non-transferable licence to tuse the Content in accordance with the terms and conditions set out in this Agreement.

    2. The Customer may permit only permit (1) end user of the Website to:

      1. view the Content via the Website; and

      2. use the Content for personal, non-commercial purposes as part of the normal process of using the Website, unless such purpose directly correlates with the subject matter of the Course.

    3. The Customer must not:

      1. use the Content for any purpose or in any manner other than as set out in clause 3(a); 

      2. permit any third party to use the Content other than as set out in clause 3(b); or

      3. permit any person to link to any page containing any of the Content (including via a hyperlink or RSS feed) without Surge's written consent.

    4. In the event that the Customer intends on more than one (1) end user to view or use the Content, it must seek Surge's consent in writing. Such consent may be conditional upon the Customer paying additional fees for the use of the Content by the additional end users. 

    5. The Customer must:

      1. use the Content in the form provided without alteration; and

      2. not use the Content in any way that could damage the reputation of Surge or the goodwill or other rights associated with the Content.

  3. Delivery and set-up

    1. Surge shall deliver the Content to the Customer in the Format. 

    2. Surge shall provide the Services with due care and skill.

    3. The Customer must ensure that its systems are capable of taking delivery of the Content in the Format. 

  4. Intellectual Property Rights

    1. Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.

    2. The Customer:

      1. acknowledges that Surge owns all Intellectual Property Rights in the Content;

      2. will not directly or indirectly do anything that would or might invalidate or put in dispute Surge's title in the Content; and

      3. must comply with Surge's reasonable usage guidelines and written directions with respect to the Content as notified to the Customer from time to time.

    3. The Customer is not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the Content supplied to the Customer or which appears on the Website nor may you use any such content in connection with any business or commercial enterprise, other than that directly related to the subject matter of the Course. 

  5. Payment

    1. The Customer must pay Surge the Fees in full prior to the commencement of the Course or as otherwise agreed with Surge in writing.

    2. Surge is not required and does not offer refunds, exchange or credit if the Customer changes its mind or elects not to proceed with the course.

    3. Surge however will provide a refund or provide the services again where the Customer is entitled to such a remedy in accordance with the Australian Consumer Law.  

  6. GST

    1. All amounts payable under this Agreement are expressed exclusive of GST.

    2. In respect of any taxable supply, the Customer must pay to Surge an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Customer of a valid tax invoice.

  7. Liability

    1. To the full extent permitted by law, Surge excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

    2. To the full extent permitted by law, Surge excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement. 

    3. Surge's total aggregate liability for all claims relating to this Agreement is limited to the Fees paid under this Agreement.

    4. Either party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

    5. This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, Surge limits its liability in respect of any claim to, at Surge's option., in the case of services:

      1. the supply of the services again; or

      2. the payment of the cost of having the services supplied again.

  8. Termination

A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:

  1. a material breach of this Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice; 

  2. Surge is unable to provide the Content at any time and for any reason; and

  3. an insolvency event occurs, other than an internal reconstruction with notice to the other party.

In the event that Surge terminates in accordance with clause 9(b) set out above, the Customer may elect for a refund or credit of the Fees paid to date. 

  1. Consequences of termination

If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:

  1. the parties are immediately released from their obligations under the Agreement except those obligations in clauses 8, 10, 11 and 12 and any other obligations that, by their nature, survive termination;

  2. each party retains the claims it has against the other; and

  3. the Customer must immediately pay all outstanding Fees.

  1. Confidentiality and privacy

    1. A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.

    2. A party may:

      1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and

      2. disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

    3. Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving party's possession or control. 

    4. Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of Surge's request or on termination of this Agreement for any reason.

    5. Surge will not use or disclose any Personal Information for a purpose other than discharging its obligations under this agreement. Surge agrees to comply at all times with the Australian Privacy Principles contained in schedule 1 to the Privacy Act 1988 (Cth). Surge will take all necessary steps to protect Personal Information in its possession against misuse or loss and it will return all such information to the owner of the information (or if requested by the owner, destroy or de-identify such information) upon termination or expiry of this agreement. This clause will survive the termination or expiry of this agreement.

    6. Surge warrants that to the best of its knowledge the supply of Content to the Customer for the purposes of this Agreement, and the collection of such information by the Customer, will not contravene the Australian Privacy Principles, but no warranty or representation to this effect is given by Surge to the Customer. 

    7. For the purpose of this clause, Personal Information means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is contained within the Content and which is collected, used, disclosed, stored or handled by a party for the purposes of this agreement.

  2. Notices

All notices which are required to be given under this agreement must be in writing and must be sent to the last known address of the recipient. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 72 hours after posting (except by prepaid letter) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.

  1. General

    1. The Customer must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of Surge. 

    2. Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

    3. If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

    4. Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

    5. This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.

    6. This Agreement may be amended only by a document signed by all parties.

    7. A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

    8. This Agreement may be executed in counterparts which will be taken together to constitute one document.

    9. A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

    10. Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than 7 consecutive days, the other party may immediately terminate this Agreement by written notice.

    11. All stamp duties and other government charges in relation to this Agreement must be paid by the Customer. 

    12. This Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.