1.1 Definitions. In these Conditions, the following definitions apply:
"Acceptable Use Policy" means the policy of YT that contains restrictions and obligations upon Users outlining proper use and censure activities that violate applicable laws and regulations that can be found on the YT website and may change from time to time.
"CC Act" means the Competition and Consumer Act 2010 (Cth).
"Charges" means the charges for the supply of the Services which are set out in the online signup process and which are payable by the Client in accordance with clause 6.
"Client" means the person listed in the online signup process who is 18 years of age or older and who purchases Services from YT for the benefit of the User.
"Commencement Date" has the meaning set out in clause 2.1.
"Compatible Web Browser" means a web browser required by the Client in order to access the Services. A list of compatible web browsers, which will change from time to time, can be found here.
"Conditions" means these terms and conditions as amended from time to time in accordance with clause 12.6 and which are applicable to the Contract.
"Contract" means the contract between YT and the Client for the supply of the Services in accordance with the online signup process and these Conditions which comes into existence in accordance with clause 2.
"Force Majeure Event" means an event beyond the reasonable control of YT including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of YT or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, default of suppliers or subcontractors, or any outage beyond the reasonable control of YT.
"GST" has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(a) the appointment of a liquidator or provisional liquidator in respect of a corporation because the corporation is or may be insolvent;
(b) the winding up of a corporation, at the instigation of its creditors or any class of its creditors;
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Licence Fee" means the licence fee set out in the online signup process.
"PPSA" means the Personal Property Securities Act 2009 (Cth);
"Security Interest" means a security interest as defined in section 12 of the PPSA.
"Services" means the services set out in the online signup process.
"YT" means YourTutor Pty Ltd with its principal offices at Level 1, 11 Chandos Street, St Leonards, NSW 2065 (ABN: 41 114 279 668).
"YT website" means the website with URL www.yourtutor.com.au as may be supplemented, varied or replaced from time to time by YT.
"Term" means the term set out in the online signup process.
"Tutors" means the trained, professional subject experts employed, contracted or otherwise engaged by YT who provide one-to-one personalised learning, and "Tutor" means any of them.
"Users" means the Client and the person(s) authorised by the Client to use the Services listed in the online signup process.
"Online signup process" means the online process undertaken at www.yourtutor.com.au by the Client and/or User in establishing the agreement for the use YT Services.
1.2 Construction. In these Conditions, the following rules apply:
(a) a "person" includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); and that person's personal representatives, successors and permitted assigns;
(b) a reference to a party includes the personal representatives, executors, administrators, successors and permitted assigns of that party;
(c) a reference to any statute, ordinance or other law include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
(d) words importing the singular include the plural and vice versa, words importing a gender include other genders and references to a person must be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;
(e) any term or phrase introduced by the Conditions including "include", "in particular" or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding that term or phrase;
(f) if a party consists of more than one person these Conditions binds them jointly and each of them severally;
(g) if the Client is a trustee it is bound both personally and in its capacity as trustee; and
(h) a reference to writing or written includes emails.
2. BASIS OF CONTRACT
2.1 Clients must sign up for the Services by completing the online signup process on the YT Website. Completion of this process by the Client constitutes an acceptance of the Conditions by the Client and formation of the Contract (the Commencement Date).
2.2 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of YT which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by YT, and any descriptions or illustrations contained in the catalogues or brochures of YT, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 The Conditions apply to the Contract to the exclusion of any other terms and conditions that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by YT shall not constitute an offer.
2.6 YT reserves the right to refuse to provide the Services to the Client where in the reasonable opinion of YT:
(a) the provision of the Services would result in the infringement of the rights of any third party in any manner; or
(b) the Client does not adequately make available to YT sufficient information, material or any other resources necessary to allow YT to provide the Services; or
(c) The Client was under the age of 18 years at the time the Contract was made.
2.7 The Client warrants in favour of YT that the Client is at least 18 years old.
3.1 In consideration of the fees paid by the Client to YT, YT hereby grants to the Client a non-exclusive licence to use the Services for the Term subject to these Conditions.
3.2 YT hereby grants to the Client the right to permit the User to use the Services in accordance with these Conditions.
3.3 In relation to scope of use:
(a) The User must not use the Services other than as specified in clause 3.1 and clause 3.2 without the prior written consent of YT. The Client acknowledges that any change of use of the Services, including the use of the Services for additional minutes beyond those purchased by the Client, approved by YT is conditional upon the Client agreeing to pay additional fees to YT prior to the change of use of Services taking effect.
(b) The Client acknowledges that any use of the Services for additional minutes beyond those purchased by the Client, will be immediately charged to the Client at the pro-rata rate specified in the online signup process.
(c) Except as expressly stated in this clause 3, the Client has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Services in whole or in part.
(d) The Client acknowledges that no source code or technical level documentation, which is provided by YT in connection with the Services, is licensed under this Contract.
(e) YT reserves the right to access and modify the Services for training, maintenance, upgrades, and security purposes at any time.
(f) The Client hereby acknowledges that this licence supports a limited quantity of minutes and/or tutorials to the Services as set out in the online signup process. If and when the Client exhausts the usage limit of its licence, the Client understands that Users will no longer be able to access the Services. In the event that demand exceeds the licence level the Client can extend this licence by the purchase of additional minutes and/or tutorials for a fee to be determined by YT.
(g) The Client hereby acknowledges that the maximum usage of Users permitted under this licence is based on the minutes spent by Users in using the Services, rather than the number of tutorials participated in by the Users.
3.4 The Client must not do any one or more of the following:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Services to become the subject of any charge, lien, encumbrance or Security Interest;
(c) deal in any other manner with any or all of its rights and obligations under this Contract,
without the prior written consent of YT.
4. OBLIGATIONS OF YT
4.1 YT shall:
(a) Deliver to the Client and set up the Services for the Client for use on a date mutually agreeable to the parties.
(b) Use all reasonable and commercial efforts to maintain the Services.
5. OBLIGATIONS OF CLIENT
5.1 The Client must:
(a) Ensure that the terms of the online signup process are complete and accurate;
(b) Co-operate with YT in all matters relating to the Services;
(c) Pay the Charges to YT in accordance with the provisions of Clause 6 of the Conditions;
(d) Provide YT with such information and materials as YT may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) Obtain and maintain during the Term a Compatible Web Browser;
(f) Obtain and maintain during the Term all necessary licences, permissions and consents which may be required before the date on which the Services are to start. This includes, but is not limited to those required for a Compatible Web Browser;
(g) Comply with the Acceptable Use Policy which can be found on the YT website. The Client must make the Users aware of the said Acceptable Use Policy from the date which the Client first uses the Services;
(i) To the extent permitted by law, indemnify YT and our its officers, employees and agents (“those indemnified”) against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with the Client’s and Users’ use of the Service or any other act or omission by the Client or any Users in connection with their use of the Service and/or any breach by the Client of any of its representations, warranties and/or obligations in this Contract; and
(j) Be at least 18 years old.
5.2 If any third party brings a claim or action or gives notice of a claim or action against the Client alleging that the possession or use of the Services (or any part thereof) in accordance with the Contract infringes the Intellectual Property Rights of a third party (“Claim”) the Client must:
(a) notify YT as soon as reasonably practicable by writing, specifying the nature of the Claim in reasonable detail; and
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of YT (such consent not to be unreasonably conditioned, withheld or delayed).
(c) This clause 5.2 shall survive termination of the Contract.
5.3 If the ability of YT to perform any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) YT shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve YT from the performance of any of its obligations to the extent the Client Default prevents or delays YT from performing any of its obligations;
(b) YT shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the failure or delay of YT to perform any of its obligations to the extent the Client Default prevents or delays YT from performing any of its obligations; and
(c) the Client must reimburse YT on demand for any costs or losses sustained or incurred by YT arising directly or indirectly from the Client Default.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services are set out in the online signup process.
6.2 The Client must pay for the Charges by way of Paypal or credit card or other payment method approved by YT (approved payment methods) in accordance with the online signup process.
6.3 The Client must pay any additional fee payable in accordance with the Contract by way of an approved payment method at the time that any such additional fee is incurred by the Client.
6.4 The Client authorises YT to immediately charge the Paypal account or credit card of the Client, or other an approved payment method, in respect of any additional minutes requested or used by the Client in respect of the Services.
6.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of GST, unless otherwise advised by YT.
6.6 YT has the right to immediately cease to provide the Services to the Client if any payment made by the Client by way of Paypal or credit card or other approved payment method is unsuccessful for any reason.
6.7 This clause 6 shall survive termination of the Contract.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Client acknowledges that all Intellectual Property Rights in the Services belong and shall belong to YT, and the Client shall have no rights in or to the Services other than the right to use it in accordance with the Contract.
7.2 The Services enable the Users to post information and content over which YT has no control (Client Content). The Client Content and all rights in the same shall remain the property of the Client.
7.3 To the extent permitted by law, the Client agrees to indemnify and hold YT harmless from and against any and all any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with YT’s use or possession the Client Content.
7.3 This clause 7 shall survive termination of the Contract.
8.1 A party ("Receiving Party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party ("Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the business of the Disclosing Party, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the obligations of the Receiving Party under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the confidential information of the Disclosing Party as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
8.3 The Client hereby grants YT the right to refer to the Client as a customer of YT.8.4 YT shall not publish any press releases regarding the use of the Services by the Client or quotes from the Users which identifies the Users without first obtaining permission from the Users.
8.6 This clause 8 shall survive termination of the Contract.
9. LIMITATION OF LIABILITY
9.1 Subject to the CC Act and to the extent that it is permitted by law:
(a) The Services are provided without any express or implied warranty other than the warranties set out in these Conditions. In the event that there is a defect with the Services (including where such defect has arisen as a result of negligence or breach by YT of its obligations under the Contract), the sole remedy of the Client shall be for YT to use commercially reasonable efforts to correct such defect. Therefore, such obligation shall constitute the entire liability of YT in contract, tort (including for negligence), statute or otherwise. YT shall have no obligation to use commercially reasonable efforts to correct non-conformities resulting from:
(i) any modifications to the Services not authorised by YT;
(ii) any use or misuse of the Services contrary to these Conditions;
(iii) any element of the Services that has been installed or operated by or on behalf of the Client in contravention of requirements contained in these Conditions and any other YT specifications;
(iv) the Client’s use of any element of the Services that has been superseded by later versions, updates, upgrades or releases (Upgrade) where the Client has chosen not to adopt the Upgrade;
(v) any element of the Services which operates properly in combination with any third party software or hardware recommended by YT; or
(vi) any element of the Services which has been modified by the Client or a User.
(b) Save for above, YT shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
(c) The total liability of YT to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amounts actually received by YT under the Contract during the period of three months preceding the last claim by the Client giving rise to liability on YT’s part.
9.2 YT takes no responsibility for the internet connectivity of the Client and the Client accepts full responsibility for the internet connectivity of the Client.
9.3 The Client acknowledges that the YT website or any part of the YT website may be temporarily unavailable and YT is not responsible or liable for the suspension or interruption to the YT website or any part of the YT website, regardless of the cause of such interruption or suspension.
9.4 YT shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event or the YT website being temporarily unavailable. If the Force Majeure Event or temporary unavailability of the YT website prevents YT from providing any of the Services for more than thirty (30) days, YT shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
9.5 Nothing in this clause is intended to limit or exclude any rights of the Client under the CC Act that cannot be excluded by agreement. To the extent a claim is brought by the Client for breach of a condition or warranty which cannot be excluded, YT’s liability for such claim shall be limited to resupplying the Service or paying the cost of having the Service resupplied.
9.6 Nothing contained in this clause shall be interpreted as limiting YT’s liability for personal injury, suffering or harm suffered by the Client as a result any intentionally wrongful conduct by YT.
9.5 This clause 9 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies, YT may terminate the Contract at any time by giving the Client thirty (30) days written notice.
10.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
10.3 Without limiting its other rights or remedies, YT may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this Contract on the due date for payment.
(b) the Client becomes Insolvent;
(c) a trustee in bankruptcy is appointed in respect of the Client or all or any of the assets of the Client became the subject of external administration, management or control, including the appointment of a controller; or.
(d) YT is legally or otherwise obliged to discontinue the Services.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason:
(a) the Client shall immediately pay to YT all outstanding charges of YT plus any applicable interest and in that regard, YT has the authority to immediately charge the credit card of the Client;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
11.2 For the avoidance of doubt, upon termination of the Contract, all amounts owing by the Client to YT under the Contract are immediately due and payable by the Client to YT.
11.3 On the termination or expiration of the Contract, all unused minutes of the Services licensed to the Client ("Unused Services") will expire and no longer be capable of being used and no refund will be provided to the Client in respect of Unused Services.
12.1 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.2 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.3 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce the Contract.
12.5 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by YT.
12.6 Unilateral Variations. From time to time, YT may vary unilaterally the terms or conditions on which it provides the Services (including these Conditions). The purpose of such variations may include varying the Services YT offers to ensure they are market-competitive, to align with the pricing and cost structure on which YT offers its Services, and to ensure terms are consistent with current market practice. In such cases, YT will notify affected Clients of the proposed variation, and will allow Clients 28 days to consider the variation before it comes into effect. If a Client does not wish to accept the proposed variation, the Client may terminate its contract without penalty by giving written notice to YT within the applicable notice period. In addition, if a unilateral variation made by YT would materially reduce the benefit of the Services to the Client, the Client will additionally be entitled to receive a refund of any pre‑paid amounts.
12.6 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of the State of New South Wales.
12.7 Jurisdiction. Each party irrevocably agrees that the courts of the State of New South Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).