Terms of Use

Last updated: 5 April 2019

Welcome to the professional development platform (“Service”) which is provided to you by Mentica Pty Ltd (ACN 631 659 964) (“Company”, “we”, “us”, “our”). Please read this document carefully as it sets out the terms and conditions of use (“Terms”) governing all users of the Service (“Client”, “you” or “user”) so it is important that you read and understand them.

Your use of the Service is also governed by our Privacy Policy. Together with the Privacy Policy, these Terms form the whole of the agreement between you and the Company in respect of your use of the Service, including any purchases made through the Service.

Without limiting the way in which you may be bound by these Terms, by signing a document agreeing to be bound by these Terms, by clicking a button or checkbox on a digital device or computer screen indicating your acceptance of these Terms, or by proceeding to use the website or the Service, you will be deemed to have accepted and will be bound by these Terms.

If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent.

If you do not agree to these Terms, then you must not use the Service.

1. General Licence Conditions

1.1 Subject to your compliance with these Terms, we grant you, a non-exclusive, non-transferable, revocable licence (“Licence”) to:

(a) use the Service and have Authorised Users use the Service;

(b) access and use the Service online via a website specified from time to time by us; and

1.2 The term of the License will, subject to clause 9, be one of the following:

(a) limited to a specific period of time, which may or may not be capable of renewal (“Subscription Licence”); or

(b) limited to an evaluation term (“Evaluation Licence”).

1.3 Except to the extent permissible under the Copyright Act 1968 (Cth), you may not copy or reproduce the Service.

1.4 You must not sublicense, deliver, transfer or assign the Licence to any other person without our written permission.

1.5 All rights in and to the Service and Material which are not expressly licensed under these Terms are strictly reserved by us.

2. Evaluation Licences

2.1 If the Service is provided on an Evaluation Licence basis, then this Licence will commence on the date that the Service is first activated for you and will expire at the end of the evaluation period specified by us at the time the Licence is granted, or at any time that we determine to terminate the Licence, whichever occurs first (“Evaluation Term”).

2.2 The Company may at its discretion, limit the functionality of the Service and/or restrict access to certain functionality of the Service during the Evaluation Term.

2.3 The Evaluation Licence terminates automatically without notice from the Company upon the expiration of the Evaluation Term, unless you elect to purchase a Subscription Licence or we otherwise agree to extend the Evaluation Term. Clause 9.3 will then apply on termination of the Evaluation Licence.

3. Subscription Licences

3.1 We may offer you an opportunity to purchase a Subscription Licence for the Service.

3.2 We may offer different types of Subscription Licences which may vary by the price payable (“Subscription Price”), term of the Subscription Licence (“Subscription Term”) or may specify limitations on the level of usage of the Service and the availability of certain features or functionality (“Usage Limits”).

3.3 The Company will specify the payment terms of the Subscription Price at the time a Subscription Licence is purchased. These payment terms may require, as specified by the Company, that the Subscription Price is paid in full upfront, payable in instalments, or paid at a later date (“Payment Terms”).

3.4 If the Subscription Price is not paid at the time of purchase (including where it is payable in instalments or by a later date), then the Subscription Price remains a debt due and payable in full to us by you, irrespective of whether these Terms are terminated prior to the Subscription Term by either party.

3.5 We will specify a method of payment at the time of purchase which may include (where offered by the Company) payment by direct transfer, direct debit, credit card or PayPal (“Payment Method”).

3.6 At the conclusion of the Subscription Term, the Subscription Licence will continually renew for further periods of time of the same duration as the Subscription Term (each a “Subscription Term”), unless:

(a) either party notifies the other prior to the conclusion of the Subscription Term that it won’t be renewing the Subscription Licence; or

(b) you terminate these Terms no less than 30 days prior to the conclusion of the Subscription Term in accordance with clause 9.4.

3.7 Upon such renewal, the Client must pay the Subscription Price using one of the Payment Methods, and the Client further consents to the Company automatically charging any credit card, or using direct debit then in effect, for the amount of the Subscription Price then due, or due at any time after renewal (as agreed as part of the Payment Terms).

3.8 If the Client is using the Service for a Subscription Term, then the Company may increase the Subscription Price for the following Subscription Term, provided that the Company has advised the Client of the increase in its Subscription Price prior to the renewal of the then current Subscription Term. The Client acknowledges that if it does not agree to the new Subscription Price for the following Subscription Term, that it may terminate its Subscription Licence under clause 3.6.

3.9 Clause 9.3 will apply on termination of a Subscription Licence.

3.10 You agree that all Fees not paid in full on the due date are debts due and payable immediately. You agree to pay all of the Company’s reasonable costs of recovering such debts (which may include debt collection or legal fees).

3.11 All amounts payable to the Company are expressed to be exclusive of all Taxes. You agree to pay the amount of any such Taxes to the Company, such that after the deduction of such Taxes, the Company receives no less than the amount of the Fees. The amount of the Taxes will be payable at the same time as the relevant amount of the Fees.

4. Updates

4.1 You will have no entitlement to receive Updates if you hold an Evaluation Licence. However, we may choose to provide, and withdraw the provision of, any of the same to you in our sole and absolute discretion.

4.2 If you hold a Subscription Licence, then during the Subscription Term you will be granted the right to receive and use all Updates of the Service, which are made available to the Company’s customers generally during the Subscription Term.

5. Support Services

5.1 You will have no entitlement to receive Support Services if you hold an Evaluation Licence. However, we may choose to provide, and withdraw the provision of, any of the same to you in our sole and absolute discretion.

5.2 If you hold a Subscription Licence, then during the Subscription Term you will be entitled to receive Support Services as follows (“Support Services”):

(a) the provision of a contact phone number or email, or online chat bot, whereby the Client may place queries with the Company in relation to the use of the Service, or any error in the Service; and

(b) the attempted rectification of errors in the Service which are reported by the Client to the Company, including by way of (at the Company’s sole discretion):

(i) providing the Client with a work around;

(ii) undertaking programmatic changes to the Service; or

(iii) producing an Update to the Service, which attempts to rectify the relevant error or defect.

5.3 You acknowledge that not all errors or defects in the Service are capable of rectification.

5.4 You acknowledge that we may refuse to provide Support Services where:

(a) the Client is in breach of these Terms; or

(b) the error or defect reported by the Client:

(i) is not reproducible by the Company;

(ii) is determined by the Company to not be an error or defect, but instead to be an intended consequence of the functionality of the Service; or

(iii) is determined by the Company to be new functionality or a customisation of existing functionality.

6. Service Availability

6.1 The Service will usually be available 24 hours a day, seven days a week. However, sometimes the Service (and any Accounts) may be unavailable while we conduct maintenance, or for technical or other reasons. We will try to give you notice before any planned outages, and keep interruptions to a minimum, but the Company is not responsible for any delay, loss, or other damage you might suffer as a result of any error or interruption in accessing the Service.

7. Additional Services

7.1 You may from time to time request that the Company provide (“Additional Services”):

(a) a higher level of Support Services over and above those set out in these Terms;

(b) modifications or additional features to the Service specifically for the Client; or

7.2 The Company is under no obligation to provide Additional Services, but should it choose to do so, then those Additional Services shall be provided under the terms of a separate agreement between the parties and may incur additional fees in respect of those Additional Services.

8. Accounts

8.1 The Client will be granted one primary Account to use and access the Service. The Client may also be granted rights to allow one or more of its Authorised Users to access and use the Service and to create additional Accounts for such purpose.

8.2 The Client shall be responsible for each use of the Service by its Authorised Users and each act, omission or negligence of an Authorised User in relation to its use of the Service, or these Terms, shall be an act, omission or negligence of the Client. The Client indemnifies the Company against any and all loss, cost, expense or damage suffered or incurred by the Company, as a result of any and all uses of the Service by Authorised Users, and from any breach of these Terms caused by an Authorised User.

8.3 The Company may grant Authorised Users the right to continue using the Authorised User’s Account where the Authorised User is no longer employed or engaged by the Client. In such case:

(a) the Authorised User shall be deemed to be the ‘Client’ for the purposes of these Terms and is bound under these Terms as if named as the Client; and

(b) to the extent that the Authorised User was accessing the Service via a Subscription Licence, that licence will automatically convert to an Evaluation Licence.

8.4 The Company may, from time to time, amend or place restrictions on the requirements needed to create an Account.

8.5 By creating an Account, the Client, and each Authorised User represents and warrants to the Company that it is at least 18 years of age or older. The Client may however permit minors under 18 years of age to use its Account or access the Service on the Client’s behalf, provided that their use of the Client’s Account occurs under the Client’s or Authorised User’s supervision at all times.

8.6 The Client agrees:

(a) that each Account (whether the Client’s or each Authorised User’s) will be created using the Company’s online sign up process, or any other method specified by the Company from time to time;

(b) to keep confidential and secure, and to ensure that each Authorised User keeps confidential and secure, any username or password used to access the Account;

(c) to be responsible for all uses of the Client’s Account by its employees or agents, and for each Authorised User’s use of their Account;

(d) that it warrants that all information provided by the Client to the Company in the setup of its and each Account is true and correct in every detail;

(e) that the Client, and each Authorised User, will only use their Account for the purposes of using the Service in accordance with these Terms, and for no other purpose;

(f) that it, and each Authorised User, may receive communications, alerts and/or other such notifications from the Company, via the Service or via any other method which the Client or each Authorised User agrees to (including, for example, via their mobile phone or email), for commercial purposes (the recipient is able to opt out or unsubscribe from these if they wish); and

(g) that the Client and each Authorised User will:

(i) only use the Service in accordance with the permitted uses and functionality described in its user manuals (or similar documentation) from time to time; and

(ii) not use their Account in a fraudulent or illegal manner, or email, upload or send any materials from their Account which are offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable.

8.7 Without limiting our rights, you acknowledge and agree that the Company may suspend usage of the Client’s and/or an Authorised User’s Account at any time in its sole and absolute discretion, if the Company considers that the Client and/or an Authorised User is in breach of these Terms.

9. Suspension and Termination

9.1 Suspension

(a) The Company may suspend its performance under these Terms, and the Client’s use of the Service if:

(i) the Client has an unremedied breach of these Terms; or

(ii) the Client is overdue in paying any of the Company’s Fees.

(b) The rights of the Company under this clause 9.1 are in addition to any rights which the Company may have under these Terms or otherwise, which arise in relation to the matters described in this clause 9.1.

9.2 Termination by the Company

These Terms and any Licence granted under these Terms may be terminated at any time by the Company by written notice to the Client if:

(a) the Client is in material breach of these Terms and the breach is not capable of rectification;

(b) the Client is in material breach of these Terms and the breach by its nature is one which is capable of rectification, but the Client fails to remedy the breach within 7 days following the provision of written notice from the Company to the Client, requiring that the breach be remedied;

(c) the Client is in breach of a Third Party Licence which cannot be remedied, and which in the Company’s reasonable opinion will expose the Company to a liability if these Terms (or any Licence granted under these Terms) continue; or

(d) the Client becomes insolvent, bankrupt, is wound up, or has an administrator, liquidator or receiver appointed over it or its assets.

9.3 Termination of the Licences

This Agreement and the Licence will automatically terminate:

(a) if a Subscription Licence is purchased, then at the end of the Subscription Term, if the Subscription Licence is not renewed by either party; or

(b) if an Evaluation Licence is granted, then in accordance with clause 2.3.

9.4 Termination by Client

The Client may terminate its Licence and these Terms at any time, and for any reason by no less than 30 days written notice (which includes notice via email) to the Company, and in which case the date of termination will be the day following the conclusion of that notice period.

9.5 Obligations upon termination of these Terms

Upon the termination of these Terms:

(a) all Subscription Licences and Evaluation Licences for the Service will terminate (and clause 9.3 will apply accordingly);

(b) the Company will cease providing all Support Services;

(c) the Client will delete or destroy, or where specified by the Company, return to the Company, any Material supplied by the Company and any backup or archival copies of the Material;

(d) the Client may request, subject to the parties agreeing an additional Fee, that the Company extract the Client Data from the Service to be provided to the Client;

(e) nothing herein shall be construed to release either party from any breach of these Terms that arose prior to the effective date of such termination; and

(f) clauses 10, 11, 12, 13, 14, 16, 17 and 18 will survive the termination of these Terms.

10. Limitation and Implied Terms

10.1 The Client acknowledges that the Company has made no warranties that the Service is error free. If the Service has been provided as part of an Evaluation Licence for testing purposes, then the Client acknowledges that the Service may only be an alpha or beta version, and may contain errors. The Client accepts all risk in using the Service.

10.2 The Client acknowledges that the Company has not made and will not make any express or implied warranties in relation to the Service or Support Services or any other goods or services provided by the Company under these Terms, other than those warranties expressly contained in these Terms. Subject to clauses 10.6 or 10.7, any term that would be implied into these Terms, including without limitation any condition or warranty, is hereby excluded.

10.3 Subject to clauses 10.6 or 10.7, the Client agrees that the Company will not be liable in respect of any claim by the Client (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 Service or Support Services or the provision of any other goods or services under these Terms and whether as a result of any breach or default, by the Company.

10.4 The Client agrees that its sole remedy in relation to any defect or errors in the Service, is to request Support Services in relation to the same.

10.5 The maximum liability of the Company under these Terms for any and all breaches of these Terms, and for any negligence in relation to these Terms, will not exceed:

(a) 25% of the annual Subscription Price paid by the Client; or

(b) if no Fees have been paid, then AUD $10.

10.6 If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to these Terms and permits the limitation of liability for breach of warranty implied by statute, the liability of the Company is limited, at the option of the Company, to:

(a) in the case of goods, any one or more of the following:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

10.7 Any of the terms and conditions of these Terms which limit or exclude any term, condition or warranty, express or implied, or the liability of the Company will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client’s statutory rights or remedies arising by virtue of the breach of any implied term of these Terms where such exclusion, qualification or limitation would be prohibited by legislation.

10.8 The Company provides the following notice as required by the Australian Consumer Law (which may apply to the Client if the Client is a “consumer” under the Competition and Consumer Act 2010 (Cth)):

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

10.9 The Client indemnifies the Company, its agents, officers and employees against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which is suffered or incurred by the Company, its agents, officers or employees as a direct or indirect result of:

(a) any breach of these Terms by the Client; or

(b) any action, claim, demand or proceedings instituted against the Company as a result of the use of the Service by the Client.

11. Client Data

11.1 Ownership of Client Data

The Client will be the owner of all Intellectual Property Rights in the Client Data. The Client however grants the Company a non-exclusive unrestricted licence to use the Client Data for the purposes of providing the Service and the Support Services.

11.2 Access to Client Data

The Company will provide the Client access to the Client Data via functionality contained in the Service. This may include, without limitation, accessing the Client Data via the end user interface and the default reporting functionality provided within the Service. The Client may, via functionality contained in the Service, determine to provide its Authorised Users with access to certain Client Data relevant to them.

11.3 Backup of Client Data

The Company adheres to best practice policies and procedures to prevent data loss, including a daily system data backup regime, but does not make any guarantees that there will be no loss of Client Data. The Client acknowledges that it is responsible for maintaining copies of any Client Data and that the Company is not responsible for any loss of, or corruption to, the Client Data.

12. Intellectual Property and Client Data

12.1 The Company will at all times be the owner of the Intellectual Property Rights in the Service and the Material, together with all Updates of the same. Apart from the Licence granted herein, all such rights are reserved by the Company. The Client hereby assigns to the Company any and all Intellectual Property Rights which it has in respect of the foregoing.

12.2 The Client agrees that it will use the same degree of effort that it uses to protect its own proprietary information to maintain possession and confidentiality of the Service and Material, and to protect the copyrights, and all related technical information, data and materials supplied to the Client by the Company.

12.3 Subject to the Client’s rights arising under the Copyright Act 1968 (Cth), the Client will not copy, reproduce, modify, disassemble or reverse engineer the Service in any way without receiving written permission from The Company to do so.

12.4 Subject to the Company’s Intellectual Property Rights in the Service and the Material, the Client shall retain all Intellectual Property Rights in any information or data which the Client or its Authorised Users upload to or store in the Service (“Client Data”). The Client may access the Client Data via functionality contained in the Service.

13. Confidentiality

13.1 Each party must keep confidential, the Confidential Information of the other party and must only use that Confidential Information for the purposes of these Terms.

13.2 A party may only disclose the Confidential Information of the other party:

(a) to the extent that the information disclosed is in the public domain (but not as a result of a breach of these Terms);

(b) to the extent required by law or the rules of a stock exchange on which the disclosing party is listed; and/or

(c) to the disclosing party’s professional advisors and employees, but only on a need to know basis and only where those persons are under a similar obligation of confidentiality as set out in this clause.

14. Compliance With Third Party Licences

14.1 The Service may incorporate components licensed to the Company by third parties, which may be subject to their own End User Licence Agreements (“Third Party Licences”).

14.2 The Client agrees to be bound by and observe all terms and conditions of such Third Party Licences which are disclosed to the Client in writing by the Company.

15. Amending This Agreement

15.1 The Company may amend these Terms by providing written notice to the Client of such amendments and/or displaying such amendments or an amended copy of these Terms to the Client during its use of the Service. Without limiting the methods by which the Client may accept such amended terms, the Client acknowledges and agrees that its, or any of its Authorised User’s ongoing use of the Service, after the Client or any of its Authorised Users are made aware of any amendment to these Terms will constitute the Client’s acceptance of such amended terms.

15.2 If the Client does not agree to any amendments made by the Company to these Terms, then the Client must terminate its use of the Service under clause 9.4 prior to any ongoing use of the Service after being notified of the amended terms.

16. Dispute Resolution

16.1 If a party has a Dispute with the other party in relation to these Terms, then the party must attempt to resolve that Dispute in accordance with this clause 15, before instituting legal proceedings in relation to the Dispute. The forgoing however will not prohibit a party applying to a court for injunctive relief or other urgent relief.

16.2 If a Dispute arises, either party may serve a notice (“Dispute Notice”) on the other party setting out the nature of the Dispute. The parties must then use best commercial endeavours to meet within 21 days of the Dispute Notice being served, to attempt to resolve the Dispute.

16.3 If the Dispute remains unresolved more than 60 days following a Dispute Notice being served under clause 16.2, then either party may require the President of the Law Institute of Victoria to appoint an independent mediator to attempt to resolve the dispute by mediation and the parties must participate in the mediation in good faith and equally share the costs of the mediation.

17. General

17.1 A notice under these Terms must be in writing and must be sent to the address or email address of the recipient as specified in these Terms, or otherwise notified by the recipient to the sender from time to time. A notice will take effect when it is received. A notice will be deemed to have been received:

(a) in the case of a notice delivered by hand, on the date of delivery;

(b) in the case of a notice delivered by pre-paid post, if sent to an address in the same territory as the sender, then 3 days following the notice being sent, and if sent to an address in a different territory, then 7 days following the notice being sent; and

(c) in the case of a notice sent by email, at the time the email is sent provided that the recipient or their email server confirms receipt of the email.

17.2 Unless otherwise requested in writing by the Client, the Company may use the Client’s corporate identity (if applicable) as part of promoting the Service in the market place.

17.3 These Terms supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of these Terms and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of these Terms.

17.4 A provision of or a right created under these Terms 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 these Terms will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in these Terms are cumulative with and not exclusive of any rights, powers or remedies provided independently of these Terms.

17.5 If any provision of these Terms 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 these Terms to the intent that the invalid or unenforceable provision will be treated as severed from these Terms.

17.6 The Company may assign or transfer its rights and obligations that arise under these Terms on written notice to the Client. The Client must not assign or transfer its rights or obligations that arise under these Terms without the prior written consent of the Company (which may be withheld).

17.7 Each provision of these Terms capable of having effect after termination and each representation and warranty made in these Terms will survive the execution, delivery and termination of these Terms and the performance of all obligations under these Terms and will not merge on termination.

17.8 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 these Terms or part of it.

17.9 These Terms are 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.

18. Interpretation

18.1 In these Terms the following terms have the following meanings, unless the context otherwise requires:

Account Means an online account created by the Client or an Authorised User for the purpose of using the Service

Authorised User means the Client and any user that the Client has allowed to be associated with the Client’s Account

Confidential Information means all confidential or sensitive information of any kind whatsoever of a party and includes, in the case of the Company, the design, functionality and architecture of the Service, the Material and the Company’s pricing structures and Fees, and in the case of the Client, includes the Client Data.

Customisation means a modification or additional functionality made to the Service by the Company specifically for the Client.

Dispute means a dispute, controversy or claim arising out of or relating to these Terms, or the breach, termination or invalidity thereof.

Dispute Notice has the meaning given in clause 16.2.

Evaluation Licence has the meaning given in clause 1.2.

Evaluation Term has the meaning given in clause 2.1.

Fees means the fees and charges of the Company relating to the provision of the Service and Services, including but not limited to the Subscription Price.

Intellectual Property Rights means all intellectual property rights of any kind whatsoever throughout the world including, without limitation, all present, future, registered and unregistered rights which subsist in copyright, trademarks, patents, designs, circuit layouts, plant breeders’ rights and the right to keep confidential information, confidential.

Licence has the meaning given to it in clause 1.1 and includes a Subscription Licence and any Evaluation Licence.

Material means user manuals, whitepapers and other materials or information which the Company provides to the Client (in digital or hardcopy form) in relation to the use of the Service.

Service has the meaning attributed to it in the introduction of these Terms and includes all Updates of the Service provided to the Client by the Company under these Terms.

Support Services means the services to be provided by the Company under these Terms, as further described in clause 5.2.

Subscription Licence has the meaning given in clause 1.2.

Subscription Term has the meaning given in clause 3.

Taxes means GST, sales taxes or taxes of a similar nature, withholding taxes, or any other taxes, duties or levies (other than taxes on a party’s income) which may levied in respect of the provision of the Support Services, the Service and all other goods and services by the Company under these Terms.

Third Party Licence has the meaning given in clause 14.1.

Update means any new version, new release or update to the Service which the Company releases to its customers generally, and which is not a Customisation specifically produced for the Client.

18.2 In the interpretation of these Terms, unless the contrary intention appears:

(a) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;

(b) the singular includes the plural and vice versa;

(d) 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;

(e) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;

(f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

(g) headings are inserted for convenience only and do not affect the interpretation of these Terms.