These terms (“Terms of Service”) constitute a contract between you (“Subscriber” or “Customer” or “You”) and Progmatics PTY LTD Trading as Elemental Projects (ABN 23 003 054 724) (“Company”), regarding the terms under which the Company will provide Subscriber with access to the Services.

BY LOGGING IN, SUBSCRIBER SIGNIFIES ITS AGREEMENT TO ABIDE BY THESE TERMS OF SERVICE (“Acceptance”). Subscriber agrees that its assent, given electronically, will have the same legal effect as if it had been personally signed by Subscriber. To the extent permitted by law, these Terms of Service are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect, because they were entered into electronically. Please print a copy of these Terms of Service for future reference.

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1) TERMINOLOGY.

• “Effective Date” – refers to the date that the Company confirms Subscriber’s right to use the Subscription Website.
• “Public Website” – means that portion of the Website that is available for use by any person without the need to be a Subscriber.
• “Services” – means the Public Website, the Subscription Website, and their entire contents, features and functionality (including but not limited to, all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof, the Standard Content and any documentation pertaining to the foregoing).
• “Standard Content” – refers to content within the Subscription Website.
• “Subscriber” – also referred to as “Member”, refers to an individual/entity/organisation/institution that has the right to access the Subscription Website via a Subscription Fee (“Paid Subscription”), or other basis. A Subscriber must be at least 18 years of age or, as applicable, the age of majority in the country, state or other jurisdiction in which the Subscriber resides (and if a minor, have the permission of a parent or legal guardian to access the Subscription Website), and possess the legal right and ability to enter into binding contracts. Furthermore, a Subscriber may be an ‘Individual’ Subscriber as follows.
• “Individual Subscriber” – also referred to as a “learner”, refers to a Subscription by one individual only (“Individual Subscription”).
• “Subscription” – refers to a right to use the applicable portion of the Subscription Website as a Subscriber under a Paid Subscription, or other form of right and/or fee to access the Subscription Website.
• “Subscription Term” – means the period of time that a Subscriber may utilize the applicable portion of the Subscription Website.
• “Subscription Website” – means the applicable portion of the Website (i.e., Premium Content or Standard Content or any portion thereof), that is available only to a Subscriber.
• “Virus” - means any item or device (including any software, code, file or program) which is designed to prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
• “Website” – means all information, content, concepts, program interfaces, structures, functionality, computer code, published materials, electronic documents, graphic files and other technology inherent in Company’s website located ecademy.net.au (or such other web address notified by the Company to Subscribers at any time), and includes the entirety of both the Subscription Website and the Public Website.

2) SUBSCRIBER WARRANTIES, RIGHTS, REPRESENTATIONS, RESTRICTIONS, AND OBLIGATIONS.

• Subscriber will be granted a limited, non-exclusive, revocable, non-transferable, and non-sub-licensable right to use and access that portion of the Subscription Website applicable to the Subscription type. The Company may upgrade, modify, change or enhance the Services and convert a Subscriber to a new version thereof at any time at its sole discretion, to the extent that this is not detrimental to Subscriber’s use of the Services and on reasonable prior notice to Subscriber.
• Subscriber agrees to abide by any rules or regulations that the Company publishes with respect to conduct of Subscribers and other users of the Website, which rules and regulations are hereby incorporated into these Terms of Service by this reference. The Company reserves the right to deny a Subscriber and/or an Authorized End User access to the Subscription Website if, in the Company’s sole discretion, Subscriber and/or Authorized End User has failed to abide by these Terms of Service or appear likely to do so.
• Subscriber accepts that the Company in its sole discretion may, but has no obligation to, monitor the Services or Website, and/or to oversee compliance with these Terms of Service.
• Subscriber promises, acknowledges, and agrees on behalf of itself that:
  1. Access privileges may not be transferred to any third-parties;
  2. It will not access, store, distribute or transmit any Viruses;
  3. It will comply with all applicable laws and regulations with respect to use of the Services;
  4. It will not rent, lease, sublicense, re-sell, distribute, transfer, copy or modify the Services or any component thereof;
  5. It will not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code made available hereunder;
  6. It will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit the Services or any portion thereof;
  7. It will not delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Website or contained in the Services;
  8. It is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment, network connections, and telecommunication links, necessary to access and use the Services;
  9. It will not use the Services in any manner, or in connection with any content, data, hardware, software or other materials that infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, or that constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third party right, or that is threatening, harassing or malicious.

3) WEBSITE AVAILABILITY.

Subscriber shall not hold the Company liable for any delays relating to Internet usage. Subscriber further acknowledges and accepts that the Website will not be available on a continual twenty-four hour basis due to such delays, or delays caused by the Company's upgrading, modification, or standard maintenance of the Website.

4) INTELLECTUAL PROPERTY RIGHTS.

• The Services are owned by the Company, its licensors or other providers of such material, and are protected by copyright, trademark, trade secret and intellectual property laws.
• No right, title or interest in or to the Services or any portion thereof, is assigned to any Subscriber, and all rights not expressly granted herein, are reserved by the Company.
• The Company name, the Company logo, and all related names, logos, product and service names, designs and slogans, are trademarks of the Company or its affiliates or licensors. Subscriber may not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
• All content posted or submitted by Subscribers or users of the Company’s Website will be automatically assigned in full to the Company.

5) COMPANY OBLIGATIONS.

The Company will use commercially reasonable efforts to enable the Services to be accessible, except for scheduled maintenance and required repairs, and except causes beyond their reasonable control including, but not limited to, any Force Majeure Event (as defined below). The foregoing undertaking shall not apply to the extent of any non-conformance caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services by any party other than the Company. If the Services are in non-conformance with the foregoing undertaking, the Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Subscriber with an alternative means of accomplishing the desired performance.

6) FEES AND PAYMENT.

• Subscription Fee. Subscriber agrees to pay the appropriate fee corresponding to the particular Services that it wishes to access for the applicable Subscription Term (“Subscription Fee”). The Company reserves the right to change the Subscription Fee with respect to a Renewal Term with prior written notification. Unless otherwise expressly stated, all fees are non-cancellable and non-refundable. There are no refunds for unused subscription periods upon cancellation or termination of your account.
• Payment Details. It is the responsibility of the subscriber to pay for a renewal before the end date of the current subscription. If, for any reason, Subscriber’s do not pay for a subscription before the effective date of the new subscription or the credit/debit card company refuses to pay the amount billed for the Services, Subscriber agrees that Company will suspend or terminate Subscriber’s subscription to the Services and require Subscriber to pay the overdue amount before enabling the service. Unless otherwise expressly stated, all fees are stated in Australian dollars.
• Taxes. Subscriber is responsible for all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against the Company. All fees are quoted as Ex GST except wherein otherwise noted by the Website.
• Debt Recovery. The Company reserves all rights to use reasonable means of debt recovery to recover outstanding debts owed to the Company including the engagement of debt collectors or initiation of legal proceedings. The Company may add the costs of debt recovery to any outstanding debt that is overdue by greater than 60 days.

7) TERM AND TERMINATION.

• General Subscription Term. Subscriber may subscribe to the Services for the applicable term of the specific Subscription commencing on the Effective Date (“Initial Term”). Thereafter, the subscriber will need to renew on the anniversary date (“Renewal Date”) of the Effective Date (each a “Renewal Term”, and collectively with the Initial Term, the “Subscription Term”). The subscription will be terminated if no payment is made by the renewal date.
• Termination. The Company reserves the right to terminate or suspend access to all or any portion of the Services for violation or suspected violation of these Terms of Service. The Company is not required to maintain your information on the Company’s system after termination of your account; and may delete information relating to terminated accounts at any time.
• Effect of Termination. Subscriber will have no further rights to access the Subscription Website. Termination will not affect the rights or liabilities of either party that accrued prior to termination.

8) CONFIDENTIALITY.

Subscriber agrees to maintain the confidentiality of the Company’s Confidential Information and trade secret information. For the purposes of these Terms of Service, the term “Confidential Information” means all portions of the Services, including but not limited to, the Subscription Website.

Subscribers are not permitted to redistribute or copy any materials, videos, recordings or content provided by the Company for purpose other than the purpose to which it was originally provided. Subscribers are not permitted to edit, adapt or modify content provided by the Company without express prior written consent of the Company.

9) THIRD PARTY LINKS OR INFORMATION.

This Website may contain links to other websites that are not operated by or related to Company. Company is not responsible for the content, accuracy or opinions expressed in such third party websites, and does not investigate, monitor, or check these websites for accuracy or completeness. The inclusion of any linked website on this Website does not imply approval or endorsement of the linked website by Company. A Subscriber that leaves this Website to access these third-party sites does so at its own risk.

10) DISCLAIMERS OF STATEMENTS/WARRANTIES.

Subscriber’s use of the services or items obtained through the services is at its own risk. The services are provided on an "as is" and "as available" basis, without any statements or warranties of any kind, either express or implied. Neither company nor any person associated with company makes any statement, warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of the services. Without limiting the foregoing, neither company nor anyone associated with company promises that the services or items obtained through the services or any portion thereof, will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that the services or the website or the server that makes it available, are free of viruses or other harmful components, or that the services or items obtained through the services will otherwise meet subscriber’s needs or expectations. Company hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantability, non-infringement and fitness for particular purpose. The foregoing does not affect any warranties which cannot be excluded or limited under applicable law. No verbal or written representations, information or advice given by company or its authorized representative shall create a warranty or in any way increase the scope of this warranty.

11) INDEMNITY.

Subscriber agrees to compensate and defend fully Company, its officers, employees, agents, successors and assigns, from and against any damages, losses, and expenses (including reasonable attorneys’ fees) resulting from any third-party claim, action or demand arising out of any breach by Subscriber of any representation, warranty, covenant, obligation or duty of Subscriber under this Agreement.

12) SURVIVAL.

All provisions relating to proprietary rights, payment of fees, confidentiality, disclaimer of warranty, indemnification, and limitation of liability, shall survive the expiration or earlier termination of these Terms of Service.

13) CHANGES.

Except, for any provisions determining the primary contractual obligations of Subscriber and Company hereunder, Company has the right to revise and amend these Terms of Service from time to time to reflect changes in business needs including, but not limited to, changes in features and functionality, changes in market conditions, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in system capabilities. Changes are effective immediately upon posting and Subscriber’s continued use of any of the Services following the posting of revised Terms of Service means that Subscriber accepts and agrees to the changes, to the extent permitted by applicable laws.

14) ASSIGNMENT.

Subscriber may not transfer these Terms of Service, in whole or in part. Company may transfer these Terms of Service and/or subcontract some or all of its obligations hereunder at any time.

15) INJUNCTIONS.

Subscriber acknowledges that a breach of any confidentiality or proprietary rights provision of these Terms of Service may cause Company irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Company may seek an injunction to prevent Subscriber from taking any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Company may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which Company may be entitled at law or in equity.

16) GOVERNING LAW.

These Terms of Service shall be construed and governed by the laws of the state of New South Wales, Australia, without regard to the principles of conflict of laws thereof. Subscriber agrees and accepts that any legal action or proceeding shall be brought in the federal or state courts for the State NSW, and Subscriber expressly waives any objection to personal jurisdiction, venue or forum non convenient. Additionally, in the event of any dispute or claim relating to or arising out of these Terms of Service (including, but not limited to, any claims of breach of contract, tort, infringement), Subscriber agrees that all such disputes/claims will be resolved by means of a court trial conducted by the courts in NSW, Australia, and Subscriber expressly waives any right it may otherwise have to a jury trial.

17) NOTICES.

Legal notices may be sent to Progmatics Pty Ltd, Attn: Legal Department, Level 40 / 100 Miller St, North Sydney, NSW, 2060, Australia (if by conventional mail). Notices to Subscriber may be sent either to the email address supplied in Subscriber’s account or to the address supplied by Subscriber as part of its registration data. Any notices or communication under these Terms of Service will be deemed delivered to the party receiving such communication (a) on the delivery date if delivered personally to the party; (b) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (c) five business days after the mailing date, if sent by mail, return receipt requested; (d) on the delivery date if transmitted by email; or within three (3) days after Company posts a notice on the Website.

18) FORCE MAJEURE.

Company will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations that is caused by events outside its reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Company’s reasonable control including, but not limited to, restrictions of law, regulations, orders, or other governmental directives, labor disputes, acts of God, third party mechanical or other equipment breakdowns, terrorist attacks, fire, explosions, fibre optic cable cuts, interruption or failure of telecommunications or digital transmission links, Internet failures or delays, storms or other similar events.

19) PRIVACY POLICY AND WEBSITE USE POLICY.

Subscriber agrees to comply with the current version of the Privacy Policy and any other policies regarding website usage displayed on the Website.

20) SEVERABILITY.

If any provision of these Terms of Service are held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Service will remain in full force and effect.

21) WAIVER AND AMENDMENT.

If Company fails to insist upon strict performance of Subscriber’s obligations under any of these terms and conditions, or if Company fails to exercise any of the rights or remedies to which it is entitled under these Terms of Service, this will not constitute a waiver of such rights or remedies and will not relieve Subscriber from compliance with such obligations. No waiver by Company of any default will constitute a waiver of any subsequent default, and no waiver by Company of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to Subscriber in writing.

22) COMPLETE UNDERSTANDING.

These Terms of Service, together with the Privacy Policy, constitute the sole and entire agreement between the Subscriber and the Company with respect to the Services and supersedes all prior and contemporaneous understandings, agreements, representations, warranties or terms and conditions, both written and oral, with respect to the Services.

EFFECTIVE DATE: February 2019