MARK JAMES BOWNESS PTY LTD
TERMS OF SERVICE (ONLINE ONLY COURSE)
Last updated: [2nd September 2018]
These Terms govern Your access to and use of the Platform, the Content and the Services.
By registering an Account via the Website or using the Platform and/or the Website (including by posting or sending any messages, emails or other communications to or via the Platform and/or the Website), You accept and agree to be bound by the most recent version of these Terms.
These Terms may be amended by Us from time to time (without separate notice to You). You should visit the Website regularly to ensure that You are aware of any changes to these Terms.
1. Definitions and Interpretation
In these Terms:
“Account” means an account, established via the Platform, for the purposes of accessing and using the Platform, the Content and the Services.
“ACL” means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Australian Customer” means a customer who accesses or uses the Platform, the Content or the Services from within Australia.
“Content” means any content or materials provided or otherwise made available to You via the Platform and/or the Website or through the provision of the Services.
“Data” means any User Information and other information submitted by You when registering Your Account or in the course of accessing or using the Platform, the Content or the Services.
“Fees” means the fees described in Item 2 of the schedule to these Terms.
“GST” means the goods and services tax that applies in accordance with the A New Tax System (Goods & Services Act) 1999 (Cth).
“Intellectual Property” means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
“Non-Australian Customer” means a customer who accesses or uses the Platform, the Content or the Services but it is not an Australian Customer.
“Platform” means Our online membership portal, software and services which are accessible via the Website.
“Services” means the services described in Item 1 of the schedule to these Terms.
“Services Term” means 12 months from the date You register an Account and request the Services.
“Terms” mean these terms of service, as amended by Us from time to time.
“Us” or “We” means Mark James Bowness Pty Ltd (ACN 169 526 407) and “Our” means belonging or pertaining to Us.
“User Information” has the meaning given to this term in clause 3.3.
“Website” means the website www.milliondollaryou.academy.
“You” means anyone accessing the Platform and/or the Services and “Your” means belonging or pertaining to You.
1.2 Rules of Interpretation
In these Terms:
a) the provisions set out in the schedule apply as if set out in the body of these Terms:
b) a word importing the singular includes the plural and vice versa, and a word of any gender includes the corresponding words of any other genders;
c) the word including or any other form of that word is not a word of limitation;
d) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
f) a reference to A$, $A, dollar or $ is to Australian currency, unless specified otherwise in these Terms;
g) a reference to time is to the time in Victoria, Australia;
h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
j)headings are for ease of reference only and do not affect interpretation; and
k) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it.
2.1 These Terms form a binding contract between Us and You. By:
a) checking the box marked “I Agree”, either when registering an Account via the Website or when first using Your Account (i.e. where Your Account has been created at Your request with details provided by You to Us over the telephone); or
b) by accessing, using or downloading the Platform, the Content or the Services,
You acknowledge and agree to these Terms.
2.2 Your access to and use of the Platform, the Content and the Services is conditional on Your continued acceptance of these Terms.
2.3 We reserve the right to change these Terms from time to time. We will endeavour to communicate any changes to You via any of the Website, the Platform or social media and Your personal email address as We deem appropriate in Our absolute discretion. You are responsible for ensuring that You have read, understood and agree with the latest version of these Terms and Your continued accessing or use of the Platform, the Content or the Services will deemed to constitute Your acceptance of any changes.
2.4 If You do not agree to any provision of these Terms, or any changes to these Terms, or otherwise become dissatisfied with the Platform, the Content or the Services, Your only remedy is to terminate Your Account and immediately cease accessing or using the Platform, the Content and the Services.
2.5 Accessing or using the Platform, the Content or the Services may be restricted or prohibited in certain countries. If You access or use the Platform, the Content or the Services outside of Australia, You are responsible for complying with the laws and regulations of the relevant country.
2.7 These Terms represent the entire agreement between Us and You with regard to Your access to and use of the Platform, the Content and the Services. In the event of any inconsistency between these Terms and any other document, these Terms shall prevail and any trading terms nominated by You (if applicable) are expressly excluded. To the extent permitted by law, any warranty, representation or guarantee not included or provided for in these Terms is of no effect.
2.8 We may close, suspend or limit Your access to or use of any of Your Account, the Website, the Platform, the Content or the Services if We determine, in Our absolute discretion, that You have contravened any provision of these Terms.
3. Access to the Platform, the Content and the Services
3.1 Access to the Platform, the Content and the Services will require You to register an Account and pay the Fees in accordance with clause 7.
3.2 Subject to clause 8, You will have access to the Platform, the Content and the Services for the duration of the Services Term. If, after creating and using Your Account, You decide to cease using any of the Platform, the Content and the Services prior to the expiry of the Services Term, You will remain liable to pay for any unpaid portion of the Fees (i.e. where You have elected to pay the Fees by way of instalments) for the remainder of the Services Term in accordance with clause 7.
3.3 You are required to provide basic information when registering an Account, including Your name, contact details, organisation details (if applicable) and any other related information which may be requested by Us (“User Information”). All User Information must be true, accurate, current and complete and You agree to promptly inform Us of any changes. If We reasonably determine that any User Information provided by You is inaccurate or incomplete and such User Information materially adversely affects our ability to provide the Services or the cost of doing so, We reserve the right to suspend or terminate Your Account and Your access to the Platform, the Content and the Services and in such circumstances, You will remain liable to pay for any unpaid portion of the Fees (i.e. where You have elected to pay the Fees by way of instalments) for the remainder of the Services Term in accordance with clause 7.
3.4 You are responsible for any and all activity on Your Account (whether or not You have authorised such activity) and for keeping Your Account details and password confidential. You agree that You will not disclose Your Account details and password to any third party.
3.5 You must not establish more than once Account for Your own use. If You establish an Account on behalf of someone else, You represent that You have the authority to represent that person and bind that person to these Terms.
4. Content and Services
4.1 Access to and use of the Content and Services are provided You, via the Platform, in consideration for payment of the Fees.
4.2 Without limiting any other provisions of these Terms, You acknowledge that:
a) where We have not authored the Content, We have make no representations or warranties as to the accuracy or reliability of the Content;
b) We have no control over the conduct of other users of the Platform and the Services and We are not obligated to regulate or supervise such conduct; and
c) We do not accept any responsibility or liability for any injury, loss, damage suffered by You in connection with the provision of the Content and the Services to You,
and You rely on any information provided to You through the Platform, the Content and the Services at Your own risk.
5. Warranties, acknowledgments and obligations
5.1 You warrant that:
a) all information (including User Information) provided by You to Us is true, accurate and complete and that You are authorised to provide such information to Us; and
b) You are at least 18 years of age and have the right, authority and capacity to enter into these Terms.
5.2 You acknowledge and agree that You are responsible for how You use the Services and that:
a) You access and use the Platform, the Content and the Services for Your personal use only and at Your own risk;
b) You must comply with these Terms at all times when accessing or using the Platform, the Content and the Services;
c) it is Your responsibility to determine whether the Platform, the Content and the Services are suitable for Your purposes; and
the accessibility and reliability of the Platform, the Content and the Services is dependent upon Your internet connection.
6. Prohibited use
6.1 You acknowledge that You must not:
a) use the Platform, the Content or the Services in any manner that is offensive, defamatory, abusive, harassing, threatening, indecent, false or misleading, illegal or violates any applicable law or regulation;
b) attempt to modify, copy, adapt, reproduce or create derivative works from the Platform, the Content or the Services;
c) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Content or the Services to any third party;
d) attempt to circumvent or disable any technology features or measures in respect of the Platform, the Content or the Services by any means or in any manner;
e) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code in respect of the Website, the Platform, the Content or the Services;
f) remove or alter or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Website, the Platform, the Content or in respect of the Services or used in connection with the Platform, the Content or the Services, unless You obtain prior written permission from Us;
g) use the Platform, the Content or the Services in any manner to violate or aid in the violation of Our Intellectual Property rights or the Intellectual Property rights of any third party;
h) take any action that interferes, in any manner, with Our rights with respect to the Website, the Platform, the Content or the Services;
i)attempt to undermine the security or integrity of Our computing systems or where the Content, or any part of the Services are hosted by a third party, that third party’s computing systems and networks;
j) attempt to tamper with, hinder, damage, modify or interfere with the functionality of Platform, the Content or the Services, including by attempting to introduce viruses or any other computer code, files or programs that interrupt, destroy or limit functionality or by knowingly transmitting viruses, trojan horses, or programming routines;
k) impair or restrict the ability of any other third party to access or use the Platform, the Content or the Services; or
l) transmit, or input into the Platform, the Content or the Services any files or data that may be offensive or in violation of any law (including any content protected by copyright or trade secrets which You do not have the right to use).
6.2 You acknowledge that if You breach any provisions of this clause 6, We may suspend or terminate Your Account and Your access to the Platform, the Content and the Services and in such circumstances, You will remain liable to pay for any unpaid portion of the Fees (i.e. where You have elected to pay the Fees by way of instalments) for the remainder of the Services Term in accordance with clause 7.
7.1 You agree to pay the Fees to Us in accordance with the timing described in Item 2 of the schedule to these Terms.
7.2 Subject to clause 8.2, the Fees are non-refundable and You acknowledge and agree that if, prior to the expiry of the Services Term, Your Account and Your access to the Platform, the Content and the Services is suspended or terminated in accordance with these Terms or if you change your mind and decide to no longer receive the Services, You will:
a) (if You have elected to pay the Fees by way of instalments) remain liable to pay for any unpaid portion of the Fees for the remainder of the Services Term; or
b) (if you have elected to pay for the Services by way of a single lump sum payment prior to receiving the Services) not be entitled to a refund.
7.3 Fees are specified in United States dollars for both Australian and Non-Australian Customers. You will be responsible for any currency conversion or other financial institution charges if You pay using a different currency.
7.4 If You are an Australian Customer, all amounts payable by You to Us under these Terms, excluding the Fees which are described in Item 2 of the schedule to these terms as being inclusive of GST, are exclusive of GST or any other applicable government tax or duty, unless otherwise indicated. You must pay all such taxes and duties in connection with those amounts.
7.5 If you are a Non-Australian Customer, all amounts payable by You to Us under these terms are exclusive of any applicable government tax or duty, unless otherwise indicated. You must pay all such taxes and duties in connection with those amounts.
7.6 Payment may be made by electronic funds transfer, credit card or any other method agreed to by Us in writing. We reserve the right to pass on to You any additional costs (including merchant fees) incurred by Us as a result of Your method of payment.
7.7 Payments to Us must be made without any deduction or set-off. We may apply the amounts paid to Us in payment of any amount owed by You.
7.8 If You fail to pay any amounts owed to Us (whether in whole or in part) in accordance with these Terms then, without limiting any other provision in these Terms, We may (in Our absolute discretion):
a) suspend or terminate Your Account and Your access to the Platform, the Content and the Services until full payment of all outstanding amounts owed to Us (including accrued interest if applicable) has been made;
b) charge interest on any amount outstanding at the Reserve Bank Cash Rate plus 2% (such interest to be calculated daily and compounded monthly), until full payment has been made; and
c) recover from You, in addition to the outstanding amount, all costs incurred by Us arising out of or in connection with collecting the outstanding amount (including, but not limited to, expenses and fees associated with or paid to or on account of solicitors, legal advisers, mercantile agents and other agents acting on Our behalf) on an indemnity basis and the amount payable will be a debt due and payable without demand from the date on which We incur liability for the cost, expense or fee.
8. Suspension and Termination
8.1 You agree that We may at any time, and in Our absolute discretion, with or without notice to You and, subject to clause 8.2, without refund:
a) modify or discontinue the Website, the Platform, the Content and the Services; and/or
b) immediately modify, suspend or terminate Your access to or use of the Platform, the Content and the Services,
including if You breach any provisions of these Terms.
8.2 If Your access to or use of the Platform, the Content and the Services is terminated by:
a) You, prior to accepting these Terms in accordance with clause 2.1, You will be entitled to a full refund of any Fees already paid by You and You will no longer be liable to pay any unpaid portion of the Fees (if applicable); or
b) Us, as a result of the Platform or the Services being discontinued by Us (other than as a result of a breach of these Terms by You):
(1) (where You elected to pay for the Services by way of a single lump sum payment) You will be entitled to a pro-rata refund of the Fees which correspond to the unused remainder of the Services Term; or
(2) (where You have elected to pay the Fees by way of instalments) You will no longer be liable to pay any unpaid portion of the Fees.
8.3 On termination of Your Account and Your access to or use of the Platform, the Content and the Services, We may retain Your Data and related documents (including copies) including to the extent required by law. Your acceptance of these Terms constitute Your authority for Us to retain or destroy documents in accordance with any applicable statutory periods.
8.4 Termination of Your Account and/or Your access to or use of the Platform, the Content and the Services is without prejudice to any claims of either party against the other in respect of breaches of these Terms prior to the date of termination, including, but not limited to, payment of any amounts in accordance with these Terms.
9. Data and privacy
9.1 Any User Information provided by You to Us may be stored in servers located in countries outside of Australia. We will take reasonable steps and use industry standard procedures to prevent unauthorised data infiltration or security breaches as part of Our efforts to ensure that Your Data is kept secure and confidential. We do not guarantee that there will be no loss of Data and We do not represent or warrant that access to the Platform, the Content or the Services will be available without interruption.
9.2 You grant Us a licence to use, copy, transmit (including internationally), reference, disclose or back-up Your Data in accordance with these Terms or as required for Us to provide the Services.
9.3 You represent and warrant that:
a) any Data provided by You is Your sole and exclusive property; or
b) You have secured any and all authorisation and rights to use and provide the Data under any applicable law.
10. Intellectual Property
10.1 Title to, and all Intellectual Property rights in, the Platform, the Content or the Services and any documentation relating to the Platform, the Content or the Services, remains the property of the relevant owner, its successors and permitted assigns and nothing in these Terms constitutes a transfer of Intellectual Property rights.
10.2 Subject to these Terms, We grant You a limited, non-exclusive, non-transferable and revocable licence to access and use the Platform, the Content and the Services for Your personal or non-commercial purposes for the Services Term. All other uses are prohibited unless You obtain Our prior written consent.
10.3 You grant Us a non-exclusive, worldwide licence to use any Intellectual Property which subsists in the Data You provide in connection with Your access to and use of Your Account, the Platform, the Content and the Services, including copyright in any content submitted by You, for the purposes of providing and maintaining the Platform and the Services.
11. Limitation of Liability
11.1 Certain legislation including the ACL may imply certain conditions and warranties into these Terms that cannot be excluded, restricted or modified. These Terms do not exclude or modify any of those conditions and warranties if to do so would contravene that law or make any part of these Terms void.
11.2 Subject to clause 11.1 and without limiting the terms of any written warranty given separately by Us, all warranties and conditions that may be implied into these Terms are excluded and Our liability for breach of any implied condition or warranty that cannot be excluded is limited (at Our option) to the re-supply of the Services or reimbursement of the cost of supplying the Services again or refunding to You any payments made in respect of the Services.
11.3 Despite any other provisions of these Terms and to the extent permitted by law, We will not be liable to You or any third party, whether in contract, warranty, tort (including negligence and strict liability), statute, or otherwise, for:
a) any indirect, special, incidental, consequential or exemplary damages that may be incurred by You;
b) any loss of income, revenue, goodwill, business, profits, data (whether direct or indirect) that may be incurred by You; or
c) any claim, damage, or loss which may be incurred by You arising from, out of or related to:
(1) Your access to or use of, or the inability to access or use, the Website, the Platform, the Content or the Services; or
(2) the provision or receipt (as applicable) of the Services.
11.4 You acknowledge and agree that You have not relied on any representation made by Us which is not expressly stated in these Terms and that We are only willing to provide access to the Platform, the Content and the Services if You agree to certain limitations of Our liability to You and to third parties.
11.5 You acknowledge that the exclusions and limitations in this clause are customary for suppliers of services equivalent to the Services and are fair and reasonable given the nature of the Services and the applicable Fees.
11.6 The limitations on Our liability to You shall apply whether or not We have been advised of, knew of, or should have known of, the possibility of such losses or damages arising.
11.7 You acknowledge that:
a) any material or information downloaded or otherwise obtained through the use of the Website or the Platform is obtained at Your own discretion and risk; and
b) You will be solely responsible for any damage to Your computer or loss of data that results from the download of such material and/or information.
11.8 If You are dissatisfied with any portion of the Website or Platform, Your sole and exclusive remedy is to discontinue use of the Website and Platform.
11.9 We may plead these Terms in bar to any claim, action, proceeding, class action or suit brought by You against Us for any matter arising out of or in connection with these Terms.
11.10 This clause shall survive termination of these Terms.
12.1 You acknowledge that whilst We will take reasonable steps to ensure that the Services will be fit for the advertised purpose, to the fullest extent permitted by law, We give no guarantees that the Content and/or the Services will apply to each of Your desired scenarios.
12.2 We do not warrant that Your access to and use of the Platform, the Content or the Services will be uninterrupted or error free. The operation of the Platform, the Content and the Services may be dependent on computer networks and the internet, which can be unpredictable and may from time to time interfere with such access or use. We do not accept any responsibility for any such interference.
12.3 You acknowledge and agree that while the Content, information and materials provided via the Services or otherwise provided to You by Us is provided in good faith on an “as is” basis, We and Our directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to You or to any other person as to the reliability, accuracy, currency or completeness of the materials or information generally contained in or produced via the Content or Services. You are solely responsible for determining the suitability of any Content and Services and You rely on any information provided to You through the Content and Services at Your own risk.
12.4 We are not responsible for the suitability, accuracy, completeness of the Content including the accuracy of any law, financial projections and modelling referred to in the Content.
12.5 You acknowledge and agree that any information, insight or guidance provided through the Content and/or the Services:
a) must not be relied on as providing any indication that You will achieve similar results, even if You utilise the information or strategies provided;
b) is provided for general information or illustrative purposes only; and
c) is not an attempt to provide financial, legal, accounting or tax advice to You or act as a substitute for professional advice. We do not provide any financial service and Your use of the Content and/or the Services does not establish any kind of fiduciary relationship between Us and You.
13.1 You indemnify, defend and hold harmless, Us from and against any and all third party claims, liabilities, demands, proceedings, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) and damages (actual, special and consequential) of every kind and nature, known and unknown, made by any third party due to or arising out of or in connection with:
a) Your breach of these Terms;
b) Your violation of any law or the rights of a third party;
any Data submitted by You;
c) Your use of the Website, the Platform, the Content and the Services;
d) any viruses, trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines inputted by You into the Platform and/or the Website.
13.2 You agree to cooperate with Us (at Your cost) in the handling of any disputes, complaints, investigations or litigation that arise as a result of Your use of the Platform, the Content or the Services including but not limited to any disputes, complaints, investigations or litigation that arise out of or relates to incorrect information You have given Us.
13.3 Your obligations under this clause survive termination of these Terms.
14. Dispute Resolution
14.1 Your feedback is important to Us. We will attempt to resolve any concerns quickly and effectively. If You have any feedback or questions about the Platform, the Content or the Services, please contact Us.
14.2 Both You and We must comply with the dispute resolution procedure described in this clause. Subject to this clause, neither party will be entitled to commence any litigation or arbitration in relation to any matter arising directly or indirectly out of these Terms until they have complied with this clause.
14.3 The dispute resolution procedure is as follows:
a) where a dispute arises, a party may serve written notice (“Dispute Notice”) on the other party detailing the nature of the dispute;
the parties must make reasonable efforts to resolve the dispute by negotiation;
b) if the parties are unable to resolve the dispute within 14 days of the receipt of the Dispute Notice, a party may by notice in writing to the other party (the “Mediation Notice”) require that the dispute be referred to mediation;
c) within 14 days of receipt of the Mediation Notice the dispute will be referred to a mediator agreed upon between the parties, and failing agreement, to a mediator appointed by the President of the Law Institute of Victoria on the application of a party;
d) the costs of the mediator will, unless the mediator directs otherwise, be paid equally by the parties but otherwise the parties must pay their own costs of the mediation; and
e) the parties must approach the mediation in good faith and make a reasonable attempt to settle the dispute by mediation and within the framework determined by the mediation.
14.4 Nothing in this clause will prevent a party from seeking urgent interlocutory relief where failure to obtain such relief would cause irreparable damage to that party.
15.1 We may sub-contract the provisions of all or some of the Services.
15.2 Any failure by Us to insist on strict compliance with these Terms or any delay by Us in exercising Our rights under these Terms will not constitute a variation or waiver of any provision of these Terms or of any right available to Us.
15.3 If part or all of any provision of these Terms or its application to any person or circumstance is held to be illegal or unenforceable, the provision will be interpreted (with the least variation) so as to ensure it is not illegal or unenforceable. If any provision or part of it cannot be so interpreted, the provision or relevant part of it will be severed from these Terms and the remaining provisions of these Terms will continue in force.
15.4 You warrant that You have the power to enter into these Terms and have obtained all necessary authorisations to allow You to do so, are not insolvent and that these Terms creates binding and legal obligations on You.
15.5 Your rights and obligations under these Terms are personal to You and must not be assigned without Our prior written consent.
15.6 Subject to clause 2.3. no amendment or variation of these Terms is effective unless made in writing by the parties.
15.7 Neither party shall be liable for any default due to war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of that party.
15.8 Any notice or document required to be served under these Terms will be sufficiently served if delivered by email to the email address of that party as notified by that party from time to time in writing. Service of the notice by email will be deemed to have been effected 24 hours after the email was sent unless the party sending the email knows or reasonably suspects that the email was not delivered to the domain specified in the email address.
16. Applicable Law and Jurisdiction
16.1 These Terms are governed by the laws of Victoria, Australia. All parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
SCHEDULE – SERVICES AND FEES
Full and unrestricted access to the Platform containing video tutorials, other recorded video content and written materials provided by Us.
Weekly session with Content providers
Access to weekly live sessions via the Platform where You can view Content provided by third party providers. Please note that:
- such Content is provided by the relevant third party provider as part of their promotion of their products and services;
- the terms on which such third party provider Content is made available via the Platform will be the subject of a separate agreement between Us and the relevant third party provider (“Content Provider Agreement”);
- each Content Provider Agreement will include a requirement that the third provider pay Us a commission equivalent to 10% of the sale price in respect of any products and services later sold by the third party provider to You (“Commission”); and
- the third party provider’s obligation to pay the Commission to Us applies for the entire duration of any relationship that the third party provider later establishes with You, notwithstanding that You may (for whatever reason) no longer be receiving the Services.
If, when registering an Account, You elected to pay for the Services by way of:
a) a single lump sum payment, the total fees payable for the Services is US$1,999 for Australian and Non-Australian Customers payable prior to any of the Services being provided to You; or
b) three consecutive equal monthly instalments of US$797 for both Australian and Non-Australian Customers, the first instalment payable prior to any of the Services being provided to You; or
c) six consecutive equal monthly instalments of US$497 for both Australian and Non-Australian Customers, the first instalment payable prior to any of the Services being provided to You.