LEARNABLE TERMS OF SERVICE

These terms of service comprise a legal agreement ("Agreement") between You (either an individual or a single entity) ("You" or "Your") and Learnable Pty Ltd (ACN 147 944 465) ("Learnable") in relation to Your use of the Services offered by Learnable on learnable.com.

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Service you agree to be bound by these Terms. If You do not accept these terms and conditions You must not access or use the Services.

Effective: 1 March 2011-03-01
Last update: 19 Sep 2011-09-12 (Version 7)

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

  1. (a) "Amendment Date" has the meaning given in clause 17(b).
  2. (b) "User Content" means any user-generated content submitted to learnable.com, such as comments, feedback, discussion or other information, data or materials in any format.
  3. (c) "Course Materials" means any materials, data and documentation submitted by an Instructor as a necessary step of an online course (including without limitation electronic, audio, video or other formats) but excludes User Content.
  4. (d) "Commission Balance" the total amount of the Instructor Fees (as calculated by Learnable at a particular point in time) which may be redeemed for US dollars or other currencies.
  5. (e) "Instructor" means a person who prepares and offers for sale Course Materials via learnable.com.
  6. (f) "Intellectual Property Rights" means all intellectual property rights of any type whatsoever throughout the world including without limitation all present and future rights in relation to copyright, inventions, patent rights, trade marks, designs, domain names, know how, and plant breeder rights, whether or not such rights are registered or able to be registered for the entire life of those rights and any renewals.
  7. (g) "learnable.com" means the Learnable website (or websites) and underlying software and infrastructure which permits the provision of the Services.
  8. (h) "Personal Information" has the same meaning as defined in the Australian Privacy Act 1998 (Cth) or any other analogous legislation relating to privacy and data protection.
  9. (i) "Services" means the services provided by Learnable which are described in clause 2.
  10. (j) "Student" means a person who procures access to or use of Course Materials on learnable.com.
  11. (k) "Taxes" means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement.
  12. (l) "Third Party Work" means any image, logo, artistic work, literary work or other item or thing in which the Intellectual Property Rights are owned by a third party.
  13. (m) "User Account" means an online account with Learnable which enables You to use learnable.com.
  14. (n) "Payment Device" means any method of payment specified by Learnable from time to time, which may include credit card, PayPal, direct debit, or telegraphic transfer.
  15. (o) Credits may be used to purchase or obtain access to certain specified goods and services from Learnable. Credits are not equivalent to any currency.

1.2 Rules for Interpretation

In the interpretation of this Agreement, unless the contrary intention appears:

  1. (a) a reference to this Agreement means a reference to an agreement between You and Learnable on the terms and conditions of this document, and includes any amendment or supplement to, or replacement or novation of this Agreement;
  2. (b) the words "includes" or "including" mean "includes without limitation" or "including without limitation";
  3. (c) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
  4. (d) the singular includes the plural and vice versa;
  5. (e) a reference to any gender includes a reference to all other genders;
  6. (f) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
  7. (g) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
  8. (h) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
  9. (i) headings are inserted for convenience only and do not affect the interpretation of this Agreement.

2. SERVICES OFFERED BY LEARNABLE

  1. (a) Learnable provides online services relating to the development of and supply of access to Course Materials, in accordance with and subject to, the terms and conditions of this Agreement, whereby:
    1. (i) Learnable provides a software engine and websites which Instructors may use to create Course Materials and make those Course Materials available to potential students;
    2. (ii) Instructors and Students may sell and purchase access to Course Materials in accordance with this Agreement; and
    3. (iii) Learnable may offer and Instructors and Students may receive other education and training goods and services from Learnable as set out in this Agreement,
  2. (b) You, as a user of the Services, may use the Services in the capacity as a Student, Instructor or both a Student and an Instructor. The terms and conditions of this Agreement will apply to Your use of the Services in either or both of those capacities (as the case may be).

3. SPECIFIC OBLIGATIONS OF INSTRUCTORS

3.1 Without limiting clause 11, each Instructor:

  1. (a) assumes all responsibility and liability in respect of the reliability, accuracy, completeness, currency and fitness for purpose of any Course Materials that it provides;
  2. (b) warrants that the Course Materials do not infringe any third party rights, including any Intellectual Property Rights;
  3. (c) warrants that it has the necessary consents and approvals to provide the Course Materials on the terms of this Agreement, including appropriate permissions to incorporate any Third Party Work in the Course Materials;
  4. (d) warrants that it has the required qualifications, credentials and expertise to prepare, offer and teach the subject matter of the Course Materials it provides, including any relevant education, training and/or industry experience;
  5. (e) must promptly rectify any errors in the Course Materials upon becoming aware of an error or upon the request of Learnable;
  6. (f) acknowledges and agrees that Learnable may refuse to publish or suspend any Course Materials, or alter the title or other parts of the Course Materials in its absolute discretion;
  7. (g) acknowledges and agrees that Learnable may alter the Student Payment, or offer discounted or free Course Materials, at any time in its absolute discretion; and
  8. (h) must not interfere with or otherwise prevent other Instructors from providing Course Materials or other teaching services.

3.2 Subject to clause 3.3, Learnable will cease to offer Your Course Materials for new enrollments within thirty (30) days of Your written request.

3.3 You acknowledge and agree that Learnable may continue to provide access to Course Materials to Students who have already enrolled as at the date of Your request for the ceasing of enrollments. This may continue for up to 12 months after enrollments cease (3.2). Unless Learnable agrees otherwise, Your obligations in relation to the Course Materials will continue until there are no current Students with access to Your Course Materials. Nothing in this Agreement obliges Learnable to remove any Content which has been submitted to learnable.com including in relation to Your Course Materials.

4. SPECIFIC OBLIGATIONS FOR STUDENTS

4.1 Without limiting clause 11, each Student:

  1. (a) acknowledges that Learnable does not engage Instructors to create Course Materials;
  2. (b) acknowledges and agrees that Learnable and Instructors make no warranty as to the reliability, accuracy, completeness, currency and fitness for purpose of any Course Materials;
  3. (c) subject to (d), following payment of the Student Fee, will be granted access to the relevant Course Materials for a period of time as described on learnable.com;
  4. (d) acknowledges that Learnable may cease to offer enrollments or remove Course Materials at any time, with or without prior notice to You, including Course Materials for which You have already enrolled and paid;
  5. (e) may use the Course Materials for their personal use only and for no other purpose;
  6. (f) must not copy or disseminate the Course Materials (or any part thereof) or any User Content to any person without our prior express written permission; and
  7. (g) must not enter into any arrangement or agreement with an Instructor to pay any amount in excess of the Student Payment for the Course Materials or to pay them separately outside learnable.com in relation to the supply of any Course Materials to You.

5. USER ACCOUNTS

5.1 Creating a User Account

  1. (a) You agree to create a User Account with Learnable in order to use the Services;
  2. (b) Your User Account will be created using Learnable's online sign up process, or any other method specified by Learnable from time to time;
  3. (c) Your User Account will permit You to login to learnable.com to manage Your User Account, make use of learnable.com and to manage other details involving Your relationship with Learnable;
  4. (d) You agree to keep confidential and secure any username or password used to access Your User Account;
  5. (e) You warrant that all information provided to Learnable in the setup of Your User Account is true and correct in every detail;
  6. (f) You agree to only maintain one User Account in relation to Your use of the Services and learnable.com;
  7. (g) You agree to provide Learnable with identification documents (including copies of passport and drivers licence) if Learnable requests that you do so. (We only ask for evidence of identity when you have paid Learnable money or are redeeming Commission Balance as a instructor and we feel we need to take an extra step to minimize the risk of fraud. Any identity documents you provide us are destroyed following completiion of the identity check);
  8. (h) all users of the Services must be 13 years of age or older. By creating a User Account, You represent and warrant to Learnable that You are 13 years of age or older and You can form legally binding agreements under applicable law. You may however permit minors under 13 years of age to use Your User Account on Your behalf provided that You are their parent or legal guardian, and provided that their use of Your User Account occurs under Your supervision at all times. If You do permit a minor to use Your User Account in accordance with the forgoing then You agree that You are responsible for their actions, omissions or negligence and You indemnify Learnable against any loss, cost, expense or damage it may suffer as a result of the same; and
  9. (i) if You are using the Services on behalf of Your employer, then both You and Your employer will be bound jointly and severally in relation to this Agreement and Your employer will be responsible for Your actions. Further You warrant that You have full authority to enter into this Agreement on behalf of Your employer.

5.2 Use of Your User Account and learnable.com

  1. (a) You agree that You will only use Your User Account and learnable.com for the purposes of using the Services and for no other purpose. In particular, in using Your User Account and accessing learnable.com, You will not:
    1. (i) resell or sublicense the use of learnable.com, any Course Materials, User Content or Your User Account to any other person;
    2. (ii) use Your User Account or the Services to promote the services of a competitor to Learnable without first obtaining the prior written consent of Learnable;
    3. (iii) use Your User Account in a fraudulent or illegal manner, or email or send any materials from Your User Account which are offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
    4. (iv) use Your User Account to stalk or harass another person;
    5. (v) use Your User Account to impersonate any person in any way whatsoever;
    6. (vi) use Your User Account to infringe the copyright, trade mark, patent or other Intellectual Property Rights of any person;
    7. (vii) use Your User Account for sending advertising, chain letters, junk mail, "spamming" or any other type of unsolicited email;
    8. (viii) forge or alter the header or address information contained in any email or communication which You send from Your User Account or in relation to the Services;
    9. (ix) use Your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files;
    10. (x) use Your User Account in such a way which damages learnable.com or denies access to learnable.com to other users of learnable.com;
    11. (xi) intentionally or recklessly use Your User Account in a way that degrades the performance of learnable.com for other users; and
    12. (xii) cancel any sale or purchase of Course Materials for the purpose of contracting separately with any person You meet through learnable.com which results in You avoiding paying Learnable any Student Payment or any other fees and charges. In these circumstances, without limiting Learnable remedies against You, Learnable may recover its lost fees and charges and the Student Payment from You by suspending Your User Account and/or deducting its loss from any Commission Balance in Your User Account.

6. PAYMENTS

6.1 Commission Balance

  1. (a) Each unit of Commission Balance is equivalent to one United States dollar.
  2. (b) Commission Balance is not legal tender and cannot be traded or sold to third parties. Commission is only exchangeable as described in 6.2.
  3. (c) Any Commission Balance which includes a fraction may be truncated by Learnable down to the nearest whole number.
  4. (d) The Commission Balance held by You may be reduced at any time by Learnable for any amount owing by You to Learnable on any account whatsoever including in relation to compensating Learnable for any loss that it determines (in its sole and absolute discretion) it has suffered as a result of any breach of this Agreement by You.

6.2 Converting Commission Balance to amounts payable to You

  1. (a) You may at any time, convert Commission Balance which You hold in Your User Account to US dollars or any other currency permitted by learnable.com and request payment of those amounts to You. Any such payments will be made via the payment method nominated by You in Your User Account. Any such payment by Learnable to You may be reduced by any amount owing by You to Learnable on any account whatsoever and may also be reduced by any related administration fees and charges imposed by Learnable from time to time.
  2. (b) Any payment to You in a currency other than US dollars will be made at an exchange rate determined by the currency exchange provider selected by Learnable in its sole discretion. You will bear all risk in relation to any loss You may make as a result of the exchange of US dollars to another currency.
  3. (c) Any withdrawal of Commission Balance in accordance with this clause may be subject to minimum or maximum withdrawal amounts specified by Learnable from time to time.
  4. (d) Learnable may refuse to permit You to withdraw Commission Balance where it considers that as at the date of withdrawal You are in breach of this Agreement or Learnable considers that You or another Student or Instructor who is a party to the separate agreement described in clause 4 is in breach of the terms of that agreement.

6.3 What amounts are paid to Instructors?

  1. (a) If a Student purchases access to Your Course Materials then Learnable will pay You the amount of the Instructor Fee, which will be calculated on the basis of the Student Payment.
  2. (b) Nothing in this Agreement will require Learnable to make any payment to an Instructor until or unless Learnable has first received payment in full from the Student.
  3. (c) Learnable reserves the right to offer Your Course Materials for free or at a discounted price, for marketing and promotional purposes. In the event that the Student Payment is discounted, the Instructor Fee will adjusted accordingly. If Learnable does not receive any Student Payment in respect of Your Course Materials, then Learnable will not be required to pay any Instructor Fee to You.
  4. (d) The Instructor Fee will be paid to You as an increment of your Commission Balance (irrespective of the method of payment used by the Student) but may be reclaimed by Learnable if any refund is payable to the Student under clause 8, or any chargeback or payment reversal occurs in relation to any payment by the Student which relates to the sale of Your Course Materials.
  5. (e) You may convert Commission Balance into cash as described in clause 6.2.

6.4 Expiry of Commission Balance

  1. (a) Unless Learnable agrees otherwise, any Commission Balance held by You will expire if You do not access your User Account within any 12 month period. Commission Balance expired in this way is lost.

6.5 Learnable is not an escrow service

  1. (a) Learnable is not an escrow service and does not hold property on behalf of any person. All amounts deposited or paid to Learnable are property of Learnable and Learnable may use those funds as it sees fit. The only rights that You have to receive payment of any amounts held by Learnable are as set out in this clause 6 or under clause 8.

6.6 Taxes

  1. (a) You agree that You are responsible for the collection and/or payment of all Taxes which You may be liable for in any jurisdiction from Your supply or purchase of any Course Materials via learnable.com. Learnable is not responsible for collecting, reporting or remitting to You any such Taxes.

6.7 Student Payments

  1. (a) When You make a purchase on learnable.com, You agree to pay, and allow Learnable to charge your Payment Device for, the amount specified on learnable.com or such other amount which may be offered by Learnable from time to time ("Student Payment").
  2. (b) The Student Payment may be paid using one or more alternative methods of payment ("Payment Device").

7. Membership Plans and Credits

  1. (a) Learnable offers for sale Membership Plans which You may purchase on a one-time, monthly recurring or annual recurring basis.
  2. (b) Membership plans entitle You to accrue Credits on a one-time or recurring basis.
  3. (c) Credits can be spent to obtain access to Courses.
  4. (d) The number of credits You accrue within a given period is specified at the time You sign up to a Plan.
  5. (e) Members of some Plans have the option to convert unused Credits into Rollover Credits.
  6. (f) The maximum number of permissible Rollover Credits is specified at the time You sign up to a Plan.
  7. (g) When the maximum number of Rollover Credits is reached, any additional unused credits automatically expire.

8. PROCESSING OF REFUNDS

8.1 Circumstances in which a refund may be paid

  1. (a) Learnable may refund an amount paid by a Student in respect of access to Course Materials supplied by an Instructor if:
    1. (i) Learnable is required by law or reasonably considers that it is required by law to do so;
    2. (ii) Learnable receives a demand or claim from a third party who claims ownership of the Course Materials or any Intellectual Property Rights in the Course Materials and Learnable accepts (to be determined by Learnable in its sole and absolute discretion) that there may be grounds for the third party's claim;
    3. (iii) Learnable deems (in its sole and absolute discretion) that the Course Materials are defective, inaccurate or incomplete;
    4. (iv) Learnable determines that issuing a refund to the Student will avoid any dispute or increased costs to Learnable;
    5. (v) Learnable issues the refund to the Student in accordance with any refund policy specified by Learnable from time to time;
    6. (vi) the order placed by the Student is found to be fraudulent;
    7. (vii) the Student placed a duplicate order in error; or
    8. (viii) in Learnable’s sole opinion, Learnable considers that it is likely that the refund is necessary to avoid a credit card charge back.

8.2 How refunds are paid

  1. (a) If Learnable issues You a refund, that refund will be paid to You using the same payment methods You used to remit the Student Payment to Learnable as described in clause 6.3 or via any other method Learnable chooses from time to time.
  2. (b) If a refund is paid to a Student under clause 8.1, then:
    1. (i) if the Course Materials were provided by You, in Your capacity as an Instructor, then You must reimburse Learnable for the amount of the Instructor Fee You received in respect of those Course Materials. The reimbursement will first be paid out of any Commission Balance You hold and any remaining amount will be a debt due and payable by You to Learnable on demand; or
    2. (ii) if the refund is paid to You as a Student, then You will initially receive the amount of the Student Payment paid by You, less the Instructor Fee. You will receive the Instructor Fee only once the Instructor Fee is reimbursed by the Instructor to Learnable as contemplated in clause 8.2(a) above.

8.3 Acknowledgements

  1. (a) You agree that any determination by Learnable that Course Materials are defective or as to whether a refund is payable is final and conclusive, is not subject to challenge by You, and is binding on You.
  2. (b) If Learnable determines that Course Materials are not defective, or otherwise refuses a request for a refund, this will not restrict a Student from pursuing an Instructor separately for amounts paid by Learnable to the Instructor.

9. SUSPENSION OF THE SERVICES

  1. (a) Without limiting Learnable’s other rights arising under this Agreement, Learnable may suspend Your User Account and Your use of the Services at any time, with or without notice to You, and for any reason in its sole and absolute discretion, including if:
    1. (i) Learnable considers that You have breached any of Your obligations to Learnable under this Agreement;
    2. (ii) You submit any Course Materials for supply via learnable.com which is or incorporates any Third Party Work without the consent (express or implied) of the owner of the Third Party Work;
    3. (iii) Learnable considers that You are using Your User Account in bad faith;
    4. (iv) You are using Your User Account or the Services for illegal or fraudulent means or in a manner which Learnable in its sole discretion considers offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; or
    5. (v) in Learnable’s sole and absolute opinion, the provision of the Services to You is resulting in an unreasonable load on Learnable’s servers or Learnable’s other services;
    6. (vi) if Learnable has reasonable grounds to believe that you are a repeat infringer of copyright or other Intellectual Property Rights.
  2. (b) You acknowledge and agree that:
    1. (i) Learnable may suspend the Services where permitted under clause 9 at any time;
    2. (ii) Learnable’s suspension of the Services may, in Learnable’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and
    3. (iii) Learnable may in its sole discretion reactivate the Services and Your User Account for You at any time following their suspension.
  3. (c) For the avoidance of doubt, You may not make withdrawals of, or spend any Commission Balance during any period of suspension of Your User Account. Further Learnable may in its sole discretion set off any Commission Balance in Your account against any loss and damage Learnable suffers or incurs in connection with Your breach of this Agreement.

10. PRIVACY

  1. (a) Learnable will collect Your Personal Information including Your name, contact details and payment details (including, without limitation, credit card details) in connection with the Services. All Personal Information will be handled, used, maintained and disclosed by Learnable in accordance with all applicable privacy laws and data protection laws as well as its privacy policy —which applies from time to time.
  2. (b) You agree that You will only use the Personal Information of other Instructors or Students as expressly permitted under this Agreement and for sole purpose of interacting with them in relation to the Services. Unless separately agreed between You and another Student or Instructor, You must not use their Personal Information for any other purpose.
  3. (c) You warrant to Learnable and its third party providers that You will comply with all privacy laws and data protection laws (including, without limitation, the Privacy Act 1988 (Cth)) in relation to the storage, collection, use, disclosure and transfer of Personal Information.

11. YOUR GENERAL OBLIGATIONS

You agree that you will at all times:

  1. (a) comply with all applicable laws in relation to the Services or the supply of Course Materials;
  2. (b) comply with any export restrictions which may apply to the export or import of Course Materials or other Intellectual Property Rights to locations inside or outside Australia or the territory in which You are located;
  3. (c) not, by engaging Learnable to provide the Services, place Learnable in breach of any law or obligation owing to a third party;
  4. (d) not undertake any act or cause any omission which will bring Learnable, its brand or other Students or Instructors into disrepute;
  5. (e) not use the Services in a manner that may lead to the suspension of the Services under clause 10;
  6. (f) provide Learnable with all information requested by Learnable which Learnable requires to provide the Services;
  7. (g) not use any robot, spider, scraper or other automated means to access learnable.com for any purpose without our express written permission; and
  8. (h) not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on learnable.com;
  9. (i) not copy, reproduce, modify, reverse engineer, create derivative works from, distribute, resell, sublicense, or publicly display any content (other than User Content or Course Materials You have submitted to learnable.com) from learnable.com without our prior express written permission and the appropriate third party, as applicable;
  10. (j) not interfere or attempt to interfere with the proper working of learnable.com or any activities conducted on learnable.com; or
  11. (k) not bypass any measures we may use to prevent or restrict access to learnable.com or to Your User Account; or
  12. (l) not directly or indirectly allow or cause a third party or any employee or contractor to do any of the acts set out in this clause 11.

12. TERM AND TERMINATION

  1. (a) This Agreement will commence on the date that You first create a User Account with Learnable and will terminate at the later of the date that:
    1. (i) the User Account is terminated or closed; or
    2. (ii) You otherwise cease using the Services.
  2. (b) If after termination or closure of Your User Account, Your User Account is reactivated or You open a new User Account, You will again become bound by this Agreement at that time.
  3. (c) This Agreement and Your User Account may be terminated immediately by Learnable at any time for any reason whatsoever with or without notice to You.
  4. (d) This Agreement may be terminated by Learnable immediately on written notice to You if:
    1. (i) You are default or breach of this Agreement and Learnable has provided You with 7 days written notice of the default or breach and where the breach or default is capable of rectification, You fail to rectify the breach or default within the period of the notice; or
    2. (ii) Learnable has reasonable grounds to consider that you are a repeat infringer of copyright or other Intellectual Property Rights.
  5. (e) Upon the termination of this Agreement:
    1. (i) Learnable will, within a time period determined by Learnable, withdraw the use of the Services from You including access to any Course Materials You have paid for;
    2. (ii) Learnable will, within 30 days cease offering the Course Materials for new enrollments on learnable.com;
    3. (iii) subject to clause 3.3, Learnable will cease accepting new enrollments to Your Course Materials;
    4. (iv) You may redeem any Commission Balance held by You to US dollars pursuant to clause 6. Learnable may however withhold a reasonable portion of any amount payable to You (with such amount to be determined by Learnable in its sole discretion) on account of credit card charge backs, refunds, payments due to third parties on Your behalf or other costs and expenses which may be incurred by Learnable following termination (including as a result of a breach by You); and
    5. (v) within 12 months following termination of this Agreement, You will be entitled to redeem any remaining Commission Balance held by You in accordance with clause 6, less any portion of that amount set off by Learnable to satisfy refunds, credit card charge backs, payments due to third parties or other costs and expenses reasonably incurred by Learnable either before or after termination.
  6. (f) Your obligations and Learnable's rights arising under clauses 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 will survive the termination of this Agreement.

13. LIMITATION OF LIABILITY AND IMPLIED TERMS

  1. (a) You acknowledge that Learnable and its third party providers have made no warranties that the Services will be continuous or error free.
  2. (b) You acknowledge and agree that Learnable and its third party providers shall have no liability or responsibility to You whatsoever for any unauthorised withdrawals or unauthorised spend of Your Commission Balance, including where such withdrawal or spend arises from:
    1. (i) any of the events described in clause 16; or
    2. (ii) any unauthorised use or access of Your User Account or learnable.com.
  3. (c) You acknowledge and agree that Learnable and its third party providers have not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by Learnable under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clauses 13(e) and 13(f), any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded to the extent permitted by law.
  4. (d) Subject to clauses 13(e) and 13(f), You agree that Learnable and its third party providers will not be liable in respect of any claim by You (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by, or any negligence of, Learnable or its third party providers.
  5. (e) The maximum aggregate liability of Learnable under this Agreement for any and all breaches of this Agreement and for any negligent act or omission in relation to this Agreement, will not exceed the lesser of:
    1. (i) the amount of the Student Payments paid for the Services by You; or
    2. (ii) the total amount of the Instructor Fee received by You.
  6. (f) If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of Learnable is limited, at the option of Learnable, to:
    1. (i) in the case of goods, any one or more of the following:
      1. (A) the replacement of the goods or the supply of equivalent goods;
      2. (B) the repair of the goods;
      3. (C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      4. (D) the payment of the cost of having the goods repaired; and
    2. (ii) in the case of services:
      1. (A) the supplying of the services again; or
      2. (B) the payment of the cost of having the services supplied again.
  7. (g) Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Learnable will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting Your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.

14. INDEMNITY

You indemnify Learnable, its agents, officers, employees, and third party providers ("Indemnified") against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which any of the Indemnified suffer or incur as a direct or indirect result of:

  1. (a) any breach by You of any representation, warranty or term of this Agreement;
  2. (b) any acts or omissions by You which are described in clause 8.1;
  3. (c) any breach by You of Your obligations to a third party, including another Student or Instructor;
  4. (d) any infringement by You of the right of a third party including Intellectual Property Rights in respect of any Third Party Work; and
  5. (e) any legal proceedings threatened or initiated against Learnable by a third party as a result of the events described in clause 14(a) to (d) above.

15. INTELLECTUAL PROPERTY

  1. (a) You acknowledge that Learnable is the owner of all Intellectual Property Rights which subsist in Your User Account and learnable.com excluding User Content and Your Course Materials. You acknowledge that You have no Intellectual Property Rights in Your User Account or in learnable.com.
  2. (b) Learnable acknowledges that nothing in this Agreement transfers ownership of Intellectual Property Rights in the Course Materials to Learnable and that Learnable has no Intellectual Property Rights in the Course Materials except as expressly provided in this Agreement.
  3. (c) You grant a worldwide, non-exclusive, royalty free, irrevocable, sublicensable, transferable and perpetual licence to Learnable to use, reproduce, distribute, syndicate, broadcast, prepare derivative works of, display, perform and provide access to Your Course Materials, User Content or any other works, item or thing You supply to Learnable (whether via learnable.com or by other means).
  4. (d) You grant a non-exclusive licence to Students to access and use Your Course Materials in accordance with this Agreement.
  5. (e) You acknowledge and agree that:
    1. (i) Learnable will not act as a moderator or adjudicator in relation to any claim by You or another third party that Course Materials, User Content or other content submitted to learnable.com infringes any Intellectual Property Rights owned by You or a third party;
    2. (ii) Learnable does not warrant or represent that it has undertaken any particular investigation or review as to whether any Course Materials supplied by a Instructor infringes any Intellectual Property Rights held by a third party;
    3. (iii) Learnable will not be liable or responsible for any breach by a Instructor or Student of any Intellectual Property Rights held by a third party in relation to any Course Materials, Services or other use of learnable.com; and
    4. (iv) notwithstanding the above, Learnable may at any time remove any User Content, Third Party Work or Course Materials from learnable.com which Learnable considers in its sole and absolute discretion, may infringe the Intellectual Property Rights of a third party.

16. FORCE MAJEURE

  1. (a) You agree that Learnable and its third party providers will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Learnable complying with its obligations under this Agreement where such failure or delay has a arisen or is anticipated to arise as a direct or indirect result of:
    1. (i) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
    2. (ii) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
    3. (iii) a significant demand is placed on Learnable's services which is above the usual level of demand and which results in a failure of Learnable's software and hardware to function correctly;
    4. (iv) the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to Learnable; or
    5. (v) any other circumstances or events which are beyond the reasonable control of Learnable.

17. MISCELLANEOUS

  1. (a) Learnable is an independent service provider to You and You and Learnable are not partners, joint venturers or principal and agent. You do not have the power to bind Learnable in relation to any obligation owing to a third party.
  2. (b) Learnable may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to You ("Amendment Date"). You agree that without limiting the ways in which You may be bound by such amendments, You will be deemed to have agreed to such amendments by making use of or accessing Your User Account or Learnable.com after the Amendment Date.
  3. (c) Unless otherwise requested in writing by You, Learnable may use Your corporate identity (if applicable) as part of promoting the Services and Learnable in the market place.
  4. (d) Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:
    1. (i) in the case of a notice delivered by hand, when so delivered;
    2. (ii) in the case of a notice sent by pre paid post, on the third day after the date of posting;
    3. (iii) in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or
    4. (iv) in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient's email server that the email has been received by the recipient.
  5. (e) This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.
  6. (f) A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
  7. (g) If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the extent that the invalid or unenforceable provision will be treated as severed from this Agreement.
  8. (h) Learnable may assign its rights and novate or transfer obligations which arise under this Agreement. You must not assign, novate or otherwise transfer Your rights or obligations under this Agreement without the prior written consent of Learnable (which may be withheld).
  9. (i) The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
  10. (j) This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.