TERMS OF SERVICE – ONLINE TRAINING SERVICES
The terms of service set out below will apply specifically to the provision of the Online Training Services by Atek Pty Ltd ACN 062 388 470 (Atek) to the Customer which governs the access and use of the Online Training Services in the form of the Online Training Content (Terms of Service). In addition to this Terms of Service, the Customer’s use of the Online Training Services is also governed by the Terms and Conditions, the Warranty Statement and the Privacy Policy. If there is any conflict between the Terms and Conditions and this Terms of Service, then this Terms of Service shall prevail with respect to the Online Training Services.
1. DEFINITIONS
For the purpose of these Terms of Service, the following terms have the meaning prescribed to them:
1.1 Confidential Information means the Confidential Information as defined in the Terms and Conditions;
1.2 Intellectual Property has the meaning defined in the Terms and Conditions;
1.3 Online Training Services means the version of the Services designed for businesses and organisations allowing a Customer with access to the Online Training Content;
1.4 Online Training Content means all video, text, graphics, audio, information, files, and any other material that is developed, operated and maintained by Atek and made available through the Online Training Services;
1.5 Price has the meaning defined in the Terms and Conditions;
1.6 Privacy Policy means the Privacy Policy posted on Atek’s website, available at www.atek.net.au/privacy-policy;
1.7 Services has the meaning defined in the Terms and Conditions;
1.8 Terms and Conditions means the Terms and Conditions that governs the provision of Services by Atek to the Customer, available at www.atek.net.au/terms-and-conditions;
1.9 Warranty Statement means the Warranty Statement posted on Atek’s website, available at www.atek.net.au/warranty-statement.
2. ACCESS AND USE
2.1 Use
(a) Atek grants the Customer a limited, non-exclusive, non-transferable licence, to allow the Customer to access, view and use the Online Training Services. The use of the Online Training Content, except as permitted in these Terms of Service, is strictly prohibited and may infringe on the Intellectual Property rights of Atek and others.
(b) The Online Training Services are for educational and training purposes only. The resources available for use are not intended as, and shall not be understood or construed as legal, financial, tax, medical, health, or any other professional advice.
(c) The Customer must:
(i) use the Online Training Services and the Online Training Content in accordance with these Terms of Use;
(ii) not copy, transmit, present, distribute, reproduce, licence, alter, reverse engineer, adapt or modify the whole or any part of the Online Training Services or the Online Training Content in any way whatsoever;
(iii) not use the Online Training Services or the Online Training Content in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms of Service, or hacking into or inserting malicious code, destruction of data, including viruses, or harmful data, into the Online Training Services or the Online Training Content;
(iv) not work around any technical limitations in the Online Training Services or attempt to run the Online Training Services on any unsupported platform;
(v) not use the Online Training Services or the Online Training Content in any way that could damage, disable, overburden, impair or compromise the Online Training Services or the Online Training Content;
(vi) comply with all applicable laws and regulations relating to use of the Online Training Services and the Online Training Content; and
(vii) access the Online Training Services or the Online Training Content by any means other than through the interfaces that are provided by Atek.
(d) Using the Online Training Service and the Online Training Content in a commercial context requires a licence. To licence the Online Training Service or the Online Training Content, please contact Atek at admin@atek.net.au.
2.2 Account Information
The Customer agrees to supply to Atek with all information reasonably requested and required by Atek to establish an account and a login to which the Customer may access and use the Online Training Services (User Login).
2.3 Access
(a) Upon payment of the Price by the Customer, Atek will provide the Customer with the User Login. The Customer is responsible for ensuring the security of the User Login details and the Customer’s data. Atek will not be responsible for any unauthorised access to the Customer’s User Login.
(b) The Customer may access and utilise the Online Training Services and the relevant Online Training Content at any time within the time period specified by Atek (Access Term). The Customer acknowledges and agrees that Atek may impose conditions on the Customer’s access of the Online Training Services and Online Training Content upon reasonable notice to the Customer.
(c) Upon expiry of the Access Term, the Customer’s access to the Online Training Services and the relevant Online Training Content will cease or will be limited until the Customer renews the Access Term by paying the Price to Atek.
(d) The Customer agrees and acknowledges that it is their responsibility to ensure that they utilise the Online Training Services for their intended purpose and complete the relevant training as required within the relevant Access Term.
2.4 Availability
(a) The Customer is responsible for ensuring that it has the necessary equipment and internet connection, the security of its own systems and the security of its access to and use of the Online Training Services and the Online Training Content.
(b) Atek disclaims any and all responsibility for, and will not have any liability, with respect to:
(i) the Customer’s inability to access or use any part of the Online Training Services due to the failure of the Customer’s equipment or internet connectivity;
(ii) any unavailability or lack of functionality of the Online Training Services.
2.5 Risk
The Customer acknowledges and agrees that:
(a) their use and access of the Online Training Service and the Online Training Content at their own risk and Atek accepts no responsibility for any interference, loss, damage or disruption to the Customer’s device or otherwise which arises in connection with use;
(b) take precautions to ensure that the process which the Customer obtain access to the Online Training Service and the Online Training Content does not expose the Customer to the risk of viruses, malicious computer code or other forms of interference which may damage the Customer’s device or otherwise cause the Customer or any person loss, damage or corruption.
3. PRICE AND PAYMENT
3.1 Payment
(a) Atek requires payment of the Price by the Customer prior to supply of the Online Training Services.
(b) The Price will be as indicated on invoices provided by Atek to the Customer in respect of the supply of the Services.
3.2 Cancellation
Except as otherwise provided for in the invoices provided by Atek in the supply of the Services, and notwithstanding anything contained in the Terms and Conditions and these Terms of Service:
(a) the Price is based on the Online Training Services purchased, whether or not the Online Training Services is actually used; and
(b) Atek cannot issue any refunds or credits for unused or unassigned logins.
4. COPYRIGHT AND INTELLECTUAL PROPERTY
4.1 Copyright
(a) The Online Training Services and the Online Training Content and any content therein are subject to copyright under Australian law and through international treaties, and applicable law in other countries.
(b) Unless otherwise indicated, Atek (and/or Atek’s third-party licensors) own the copyright and other Intellectual Property rights in the recording, text, graphics, information, designs, data and other content contained in the Online Training Services and the Online Training Content and through any links contained therein.
(c) The Customer agree to not use the Online Training Services and the Online Training Content in any way that infringes, misappropriates or violates any trademark, copyright, patent, trade secret, right of publicity, right of privacy or other personal, legal, proprietary or contractual right of any third party or violates any law.
4.2 Ownership
Atek (or its licensors) is and will remain the exclusive owner or rightful licensee of:
(a) the Online Training Services, the Online Training Content and any software comprising any portion thereof and all related services, specifications, documentation and technical information, and all improvements, enhancements or modifications thereto, including any customisations and developments made for the Customer;
(b) Atek’s Confidential Information;
(c) all techniques, know-how, software, algorithms and methods or rights thereto that are owned by Atek or developed during the course of the design, development or provision of the Online Training Services or Online Training Content employed by Atek in connection with the Online Training Services or Online Training Content; and
(d) all other Atek work product and/or other materials provided or accessible to Customer in connection with the Online Training Services and the Online Training Content, and all right, title and interest in and to any of the foregoing, including all Intellectual Property rights. Atek reserves all rights not expressly granted to Customer in these Terms of Service.
4.3 Intellectual Property
(a) All Intellectual Property in the information and material published on/in the Online Training Services and Online Training Content is owned by Atek. The Customer does not obtain any interest in the Intellectual Property. All content in the Online Training Services and Online Training Content, including but not limited to all software, design, brand names, text, photographs, information, sound recordings, images and other material is protected by copyright, trademark and Intellectual Property laws in Australia and worldwide. The Customer must not do anything which interferes with or breaches those laws or the Intellectual Property rights in the Online Training Services and Online Training Content or any of its components.
(b) Atek obtains ownership of and title to any data comprised in and forming part of the Online Training Services and Online Training Content.
(c) Nothing in these Terms of Service gives the Customer a right to use any of Atek’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
(d) This clause 4.3 survives termination of these Terms of Service.
5. EXCLUSION OF WARRANTIES
5.1 Disclaimer
To the extent that the Customer acquire the goods or services from Atek as a consumer within the meaning of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended from time to time, the Customer may have certain rights and remedies that cannot be excluded, restricted or modified by agreement. Nothing in these terms operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute, where to do so would contravene that statute (non-excludable obligations).
5.2 Exclusions
(a) The Customer acknowledges and agrees that:
(i) except for any non-excludable obligations, Atek gives no warranty (express or implied) or guarantee that information, services and materials contained the Online Training Services or the Online Training Content, and/or through any links contained therein, are accurate, complete, current, or fit for any use whatsoever. All such information, services and materials are provided “as is” and “as available” without warranty of any kind;
(ii) except for any non-excludable obligations, Atek gives no warranty (express or implied) or guarantee that information, services and materials contained the Online Training Services or the Online Training Content, and/or through any links contained therein, are accurate, complete, current, or fit for any use in any other jurisdiction outside Australia. The Customer is responsible for ensuring that such information, services and material complies with the relevant laws and regulations of their applicable jurisdiction prior to using the Online Training Services and obtain any permits, licenses and authorisations required for such compliance;
(iii) to the maximum extent permitted by law and subject to any non-excludable obligations, Atek excludes all liability (including in negligence) for any loss arising out of access to, use of, or reliance upon information, services and materials contained in the Online Training Services or the Online Training Content through any links contained therein;
(iv) to the maximum extent permitted by law and subject to any non-excludable obligations, Atek is not responsible or liable (including in negligence) for any factual inaccuracies or technical errors contained in the Online Training Services or the Online Training Content and/or through any links contained therein.
(b) Atek and individual contributors do not purport to provide professional or other expert advice through the Online Training Services or the Online Training Content and if legal or other expert advice is required, the services of a competent professional person should be sought.
(c) The views expressed in the Online Training Services and the Online Training Content and any materials, including by presenters delivering the Online Training Content, may not necessarily be those of Atek or any other organisation with which they are associated.
5.3 Release
(a) The Customer hereby waives, releases, forgives, discharges and relinquishes any and all claims that the Customer may have against Atek, its related bodies corporate, directors, officers, employees, contractors, agents and representatives, in connection with, or arising out of, or incidental to, access to or use of the Online Training Services and/or the Online Training Content including but not limited to downloading any information and materials in or from the Online Training Services.
(b) The Customer releases and indemnifies Atek, its related bodies corporate, directors, officers, employees, contractors, agents and representatives (those indemnified) from and against:
(i) any loss or damage or liability for any loss or damage incurred by the Customer relating to the Online Training Services and/or the Online Training Content; and
(ii) any loss, liability, claim, demand, damage or expense (including legal fees) made by any third party against those indemnified, howsoever caused (including through negligence) directly or indirectly arising out of or in connection with: A the Customer’s use of the Online Training Services and/or the Online Training Content or any linked website, including by making or carrying out any commitments; B the Customer’s use of or reliance on information contained in or accessed through the Online Training Services and/or the Online Training Content; or C breach by the Customer of the Terms of Service.
(c) Without limiting the above, Atek will use best endeavours to ensure, but cannot warrant that, the Online Training Services and/or the Online Training Content, information and or material available for download is free from viruses or other conditions that could damage or interfere with data, hardware or software. Accordingly, Atek excludes to the maximum extent possible, any liability for any loss suffered as a result of any such viruses or defects.
5.4 Rights
Atek reserves the right to:
(a) change the Online Training Services (including the Online Training Content, any other content, appearance, design, functionality and all other aspects thereof, and associated fees), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason;
(b) discontinue the Online Training Services and/or the Online Training Content or any part thereof subject to providing Customer a pro rata refund for pre-paid amounts for services not consumed due to such discontinuation, which will be Atek’s entire obligation to Customer in the event of such discontinuation; and
(c) refuse the Online Training Services to anyone for any reason at any time.
6. THIRD PARTY WEBSITES
6.1 The Online Training Services and/or the Online Training Content may:
(a) contain links to websites and applications owned and operated by third parties; or
(b) be subject to the terms and conditions of use and operation of applications owned and operated by third parties.
6.2 Atek does not approve, endorse, recommend or sponsor these linked sites, their owners or operators, or any information, graphics, materials, products or services referred to or contained on those linked websites, unless specifically stated.
6.3 Atek is not responsible for the content of these linked websites and applications and makes no representation as to the accuracy of any material on these websites.
6.4 Atek, to the maximum extent possible, excludes liability for any loss suffered as a result of use of these third- party websites and applications, or reliance on the information contained within. The terms and conditions, terms of use and privacy policies of those third-party websites and applications will apply to the Customer’s use of those websites.
7. TERMINATION
7.1 Right of termination
(a) Atek will have the right to terminate or suspend the Customer’s use of the Online Training Services at any time with or without notice to the Customer if the Customer has breached the Terms of Service or the Terms and Conditions (including but not limited to a failure to pay any amounts payable by the Customer).
(b) The Customer has the right to terminate this Terms of Service with Atek if Atek is in material breach of this Terms of Service and fails to remedy such breach within thirty (30) days of written notice of such breach.
7.2 Effect of suspension or termination
(a) On suspension or termination of these Terms of Service for any reason:
(i) all licensed granted to the Customer under these Terms of Service will automatically terminate (or suspend until such time the suspension is lifted by Atek) and Atek will immediately disable the Customer’s login and access to the Online Training Services and the Online Training Content without additional notice to the Customer;
(ii) all Online Training Content will be removed and not available for further use by the Customer;
(iii) the Customer will return to Atek all materials it has acquired pertaining to the Online Training Service and all Confidential Information.
(b) If these Terms of Service are terminated prior to the end of the Access Term, Atek will retain the balance of
any amounts previously paid for by the Customer.
8. CHANGES TO THESE TERMS OF SERVICE
8.1 Changes
(a) The Customer agrees that Atek may review these Terms of Service at any time. If, following any such review, there is to be any change to these Terms of Service, depending on the nature of the change, Atek will post the changes on this page and indicate at the top of this page the last revision and/or notify the Customer, either through the Online Training Services interface, in an email notification or through other reasonable means and as required by the applicable law.
(b) The changes will take effect no earlier than fourteen (14) days on which Atek notifies the Customer of such change (Notice Period), except changes that address new functions to the Online Training Services and changes made for legal reasons will be effective immediately.
(c) The Customer will be under no obligation to accept such changes except where Atek supplies further Services and the Customer accepts the supply of Services.
(d) If Atek notifies the Customer of modifications to these Terms of Service that directly and materially conflict with the terms and conditions of these Terms of Service that was in effect as of the date of the Customer’s initial acceptance, and such modifications are unacceptable to the Customer, the only recourse is to terminate these Terms of Service and discontinue all usage of the Online Training Services by the Customer. The Customer must provide written notice to Atek of such termination within the Notice Period. Atek will provide the Customer a pro rata refund for pre-paid amounts for the Online Training Services not consumed due to such termination.