1.1 "Skwirk" means Red Apple Education Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Red Apple Education Pty Ltd.
1.2 "Subscriber" means the person/s requesting Skwirk to provide the Services, and who, under this User Agreement, has been furnished by Skwirk with Access Details that allow the use of Skwirk's Services. If there is more than one person requesting the Services, Subscriber is a reference to each person jointly and severally.
1.3 "Web Site" means a location, owned by Skwirk, which is accessible on the Internet through the World Wide Web and which provides Skwirk's Content, including multimedia presentations and online assistance.
1.4 "Services" means all Services (including any advice, recommendations or Content obtained from the Web Site) supplied by Skwirk to the Subscriber at the Subscriber's request from time to time.
1.5 "Content" means any content (including, comments, posts, or opinions), products, goods, resources, documents or educational materials (including, but not limited to, written content, testing procedures, study aides and relevant images) supplied by Skwirk, via the Web Site, in the course of it conducting, or supplying to the Subscriber, the Services.
1.6 "Subscription Fee" means the price payable for the Services as agreed between Skwirk and the Subscriber in accordance with clause 4 of this User Agreement.
1.7 "Access Details" means the pieces of confidential information (such as usernames and passwords) supplied by Skwirk to the Subscriber, that are used to facilitate the Subscriber's use of the Services.
1.8 "User Agreement" means this contract, between Skwirk and the Subscriber, which both parties agree consists of the entirety of the relationship between the parties, to the complete and unqualified exclusion of any other terms, promises, warranties, representations, or other agreement of any kind in respect to the Services.
2.1 The Subscriber acknowledges that this User Agreement forms a legally binding contract under applicable law, and as such, the Subscriber warrants that they are at least eighteen (18) years of age at the time of entering in this User Agreement, and that they are of full legal capacity. In the event the Subscriber is under this age, Skwirk shall require the details (and acceptance of this User Agreement) of at least one parent and/or guardian, who will take full responsibility for the Subscriber and guarantee the Subscriber's obligations are met, including payment of the Subscription Fee.
2.2 Where the Subscriber is acting on behalf of any third party, and that third party is intended to be responsible for the payment of the Subscription Fee, then the Subscriber:
- warrants and declares that they are a duly authorised representative of such third party, and have the full authority to contract with Skwirk for the supply of Services on the Subscriber's behalf, and such authority shall continue until the User Agreement is terminated (as per clause 12) or the intended third party otherwise notifies Skwirk in writing that the said Subscriber is no longer their duly authorised representative;
- acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf in the event that the third party does not pay for the Services when due.
2.3 The Subscriber is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions where the Subscriber checks the box at the conclusion of this User Agreement, which shall be subject to amendment from time to time.
2.4 These terms and conditions may only be amended with Skwirk's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Subscriber and Skwirk.
2.5 Notwithstanding anything in this User Agreement, the Subscriber may not use the Services for any commercial operations, or the preparation thereof (such as, but not limited to, in order to obtain the email addresses of other persons).
- Change in Control
3.1 The Subscriber shall give Skwirk not less than fourteen (14) days prior written notice of any proposed change of ownership of the Subscriber and/or any other change in the Subscriber's details (including but not limited to, changes in the Subscriber's name, address, contact phone or fax number/s, or business practice). The Subscriber shall be liable for any loss incurred by Skwirk as a result of the Subscriber's failure to comply with this clause.
- Subscription Fee and Payment
4.1 At Skwirk's sole discretion the Subscription Fee (subject to clause 4.3) shall be as indicated on:
(a) Skwirk's Web Site; or
(b) any invoice provided by Skwirk to the Subscriber.
4.2 In subscribing to Skwirk's Web Site, the Subscriber is required to pay periodic Subscription Fee for the on-going use of the Web Site, the amount of which is stipulated on Skwirk's Web Site.
4.3 Skwirk may adjust the Subscription Fee from time to time, which shall be notified to the Subscriber, and shall take effect, upon the Subscriber's renewal of the Subscription Period.
4.4 Time for payment for the Services being of the essence, the Subscription Fee will be payable by the Subscriber on the date/s determined by Skwirk, which may be:
(a) on the Subscriber's acceptance of this User Agreement;
(b) by way of instalments in accordance any payment schedule specified by Skwirk;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Subscriber by Skwirk.
4.5 Payment may be made by cheque, bank cheque, PayPal, credit card, or by any other method as agreed to between the Subscriber and Skwirk.
4.6 Unless otherwise stated the Subscription Fee includes GST, which the Subscriber is required to pay (without deduction or set off of any other amounts) at the same time and on the same basis as the Subscriber pays the Subscription Fee. In addition, the Subscriber must pay any other charges, taxes and duties that may be applicable in addition to the Subscription Fee, except where they are expressly included in the Subscription Fee.
4.7 Receipt by Skwirk of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
- Provision of the Services
5.1 Skwirk warrants that the Access Details provided to the Subscriber shall be valid for the entirety of this User Agreement, subject to the terms and conditions contained herein.
5.2 Due to the inherent nature of websites in general, Skwirk cannot guarantee uninterrupted or continuous availability of the Web Site, and the Subscriber accepts that the Web Site may also be unavailable from time to time for maintenance or scheduled upgrades. Where able, Skwirk shall provide the Subscriber with advanced warning of the same. Skwirk shall accept no liability in relation to the Web Site's downtime, whether scheduled or otherwise.
5.3 The Subscriber acknowledges that access to the Web Site may not be available in all geographical areas, and Skwirk shall not be liable for any loss or damage suffered by the Subscriber whatsoever resulting from the total unavailability of access to the Web Site.
5.4 Skwirk makes no representations, statements, conditions or agreements, unless expressed by the Director of Skwirk in writing, concerning the content that is posted or available on the Web Site, nor is Skwirk bound by such.
5.5 The Subscriber acknowledges that Skwirk may, in their absolute discretion, replace or amend Content to better reflect the Australian curriculum, and may alter the location of such Content on the Web Site.
5.6 Customer support shall be available via email and telephone during standard business hours and such other hours as Skwirk may advertise on the Web Site.
5.7 Skwirk makes no guarantee that:
(a) all Content will be accessible via all browsers and/or tablets on all occasions; or
(b) where the Web Site provides links to outside resources, that the URL location of such resources are maintained,and remain accessible by the Subscriber.
Therefore, the Subscriber indemnifies Skwirk against any and all claims for any loss or expense incurred by the Subscriber, and/or any refund on the Subscription Fee, due to lack of functionality.
- Subscription Period
6.1 The Subscription Period shall commence, and Skwirk's shall supply the Subscriber with the Services by furnishing the Subscriber with Access Details to the Web Site, provided:
(a) the Subscriber has accepted the terms and conditions of this User Agreement, as per clause 2.3; and
(b) the registration and payment requirements have been successfully fulfilled by the Subscriber.
6.2 The Subscription Period shall continue for the term selected by the Subscriber upon entering into this User Agreement, and, upon expiration of this term, shall require renewal by the Subscriber, unless terminated in accordance with clause 12.
6.3 Irrespective of whether the Subscriber utilises the Services during the Subscription Period, or not, Skwirk shall not issue a refund on any Subscription Fee, unless the Subscriber is granted such right under any applicable Australian legislation.
6.4 Where the Subscriber defaults in payment of the Subscription Fee (of any part thereof), Skwirk shall suspend the Services by deactivating Access Details previously supplied to the Subscriber for the purpose of accessing the Web Site.
- Conditions of Use
7.1 The Subscriber agrees that:
(a) any material whatsoever posted on the Web Site by the Subscriber (or any third party using the Subscriber's Access Details) shall become the intellectual property of Skwirk as per clause 10.1;
(c) the Subscriber is responsible for anything actually posted by themselves, or for anything posted with the consent of the Subscriber (including where clause 9.2 applies), unless the Subscriber's Access Details were mistakenly disseminated by Skwirk;
(d) any material posted by the Subscriber during the use and enjoyment of the Web Site:
(i) which is represented as fact, is to the knowledge of a reasonable person, accurate, realistic, and not intentionally or negligently misleading;
(ii) is not offensive, racially discriminatory, harassing, libellous, supportive or suggestive of any act injurious to persons or property;
7.2 The Subscriber agrees and warrants that they shall not use the Web Site:
(a) in any manner that:
(ii) advertises any products or services, or solicits any other person to buy, hire, or sell any products or services, or transmits chain letters, junk mail or unsolicited email of any kind;
(iii) exploits minors, solicits information from minors, or encourages, promotes or incites inappropriate behaviour in minors, or the use of drugs by minors, or causes the image of a minor (whosoever that minor may be) to be posted on the Web Site;
(iv) constitutes, incites, solicits, or attempts to be, or conspires to be, criminal conduct in any State or territory of Australia, in the Commonwealth of Australia, or in any other jurisdiction;
(v) infringes any legal, equitable or moral right of any third party in any jurisdiction;
(vi) breaches any intellectual property right of any third party without the express consent of said third party;
(vii) impersonates any person whomsoever;
(viii) harasses any person with unwelcome behaviour or solicits money from any person;
(ix) suggests or implies that Skwirk approves of any material posted by the Subscriber;
(x) deploys any robot, spider, worm or other device, to copy, retrieve, alter or reproduce the navigational structure or presentation of the Web Site or Content, or any other information or material stored thereon;
(xi) redirects, or causes to be redirected, any other user of the Web Site;
(xii) except, and only to the extent, permitted by statute, modifies, adapts, sub-licences, translates, sells, reverse engineers, deciphers, or other disassembles any part of the Services
(b) they shall not operate multiple accounts without the express prior written approval of Skwirk.
7.3 Skwirk may remove, at their sole discretion (and irrespective of the subjective opinion of the Subscriber), any material posted by the Subscriber that is in breach of this User Agreement, or that (in the sole opinion of Skwirk) is determined may bring the Web Site into disrepute, and subsequently impose limitations on the Subscriber's Web Site functionality. Skwirk will not be liable to the Subscriber for any loss or damage the Subscriber suffers because Skwirk has exercised its rights under this clause.
- Advertisers and Linked Sites
8.1 The display on the Web Site of any advertiser, or the provision of a link to third party websites, does not constitute Skwirk's endorsement of either the advertiser or third party provider, or any of their website content or business practices. As Skwirk does not have any control of the content of any third party websites, access to such websites is at the Subscriber's sole risk and it is recommended that the Subscriber thoroughly review the terms and conditions of use and the Privacy policies of any third party website immediately before accessing such a site.
8.2 Skwirk shall accept no liability in regards to any dealings, promotions or activities between the Subscriber and advertisers, or third party providers.
9.1 The Subscriber is responsible for maintaining the confidentiality of the Access Details furnished by Skwirk to the Subscriber. Furthermore, the Subscriber agrees that Skwirk shall be in no way liable whatsoever for any unauthorised use of the Services.
9.2 The Subscriber warrants that the Subscriber shall take all reasonable steps to maintain the confidentiality of the Access Details, and shall notify Skwirk immediately when the Subscriber, or a reasonable person in the position of the Subscriber, has reason to believe that there has been unauthorised use of such Access Details.
9.3 The Subscriber acknowledges that where it is determined by Skwirk (at their sole discretion) that any unauthorised third party has accessed the Web Site through the Subscriber's Access Details, Skwirk reserves the right to restrict the Subscriber's access to the Web Site pending resolution of such.
- Intellectual Property
10.1 Skwirk shall retain all legal and equitable rights in the Services, and all Content and/or material posted on the Web Site, irrespective of origin, unless otherwise agreed.
10.2 The Subscriber may not reproduce, copy, transmit, publish, edit, upload, or deal with in any way whatsoever, the Content and/or material posted on the Web Site, unless by the express prior written permission of Skwirk.
10.3 The Subscriber warrants that they shall not use the Web Site in any manner that infringes the copyright, or any other intellectual property, of any other person or entity, and agrees to indemnify Skwirk against any action taken by a third party against Skwirk in respect of any such infringement.
10.4 Where the Subscriber has created any material by use of the Web Site, the Subscriber:
(a) permits access to such material for use by other users in any way in which those users deem fit, provided such use does not violate any other provision in this User Agreement; and
(b) disclaims sole ownership of such Content, and grants Skwirk the right to copy and share such material with other users.
- Limitation of Liability
11.1 Whilst Skwirk, in providing the Services, shall make all effort to ensure their reliability, Skwirk disclaims any liability whatsoever for any loss or damage caused by the Subscriber's use of, or reliance on, the Services, and whatsoever Content and/or material is contained thereon (including, but not limited to, any representations made by Skwirk, or servants of Skwirk, concerning any advertised, current or potential capability of the Web Site and/or Services.
11.2 Any Content and/or material posted on the Web Site does not represent the views of Skwirk, and is not endorsed by Skwirk. This clause extends to cover any claims in connection with any actual, or anticipated, use and enjoyment of the Web Site, and any inability to use and enjoy the Web Site.
11.3 Any liability whatsoever, howsoever incurred, in any form of action on the part of Skwirk, shall be limited, subject to the maximum extent possible on a reasonably arguable view of the law, to the value of the consideration provided by Skwirk
12.1 The Subscriber may terminate this User Agreement by providing Skwirk with a minimum of fourteen (14) days written notice of the Subscriber's intention to discontinue their use of the Services. Following receipt of such notice, the subscription to Skwirk's Web Site shall terminate at the end of the then current Subscription Period.
12.2 Without prejudice to any other remedies Skwirk may have:
(a) if at any time the Subscriber is in breach of any obligation (including those relating to payment) under these terms and conditions, Skwirk shall be entitled to suspend or terminate the Subscriber's subscription to the Web Site. Skwirk will not be liable to the Subscriber for any loss or damage the Subscriber suffers because Skwirk has exercised its rights under this clause; and
(b) and notwithstanding anything else in this User Agreement, Skwirk unreservedly maintains the right, exclusive of procedural fairness, to suspend or terminate the Subscriber's subscription to the Web Site if, in the subjective opinion of Skwirk, the decision to do so is in the best interests of Skwirk or other users.
- The Commonwealth Trade Practices Act 1974 ("TPA") and Competition and Consumer Act 2010 (CCA)
13.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the CCA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
13.2 Where the Subscriber contracts for Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer's statutory rights.
- Complaints Process
14.1 Any complaint made regarding the Subscriber (or another user) shall be investigated by Skwirk, who may:
(a) contact the Subscriber (or another user), who is the subject of the complaint. Skwirk will not disclose the identity of the complainer;
(b) where the complaint is formally made in writing and is substantiated by evidence capable of sustaining the complaint, require an explanation by the Subscriber (or another user) in question, which may be communicated to the complainer if it is deemed by Skwirk to be reasonably necessary to do so;
(c) at their sole discretion, suspend or cancel any subscription (or any part of the Services), where it is upheld that there has been a breach of these Terms of Service by the Subscriber (or any other user).
- Privacy Act 1988
15.1 The Subscriber agrees that personal information provided may be used and retained by Skwirk, and:
(a) shall be stored on secure systems, safeguarded by physical, technical (firewalls, SSL encryptions, etc.) and procedural methods;
(b) communications and postings, including those with other users, are deleted from the system on a regular basis;
(c) voluntary information provided in response to contests, surveys and competitions will be deleted after completion of the event;
(d) testimonials, complaints and other feedback stored indefinitely;
(e) all requests and enquiries regarding information held by Skwirk can be made at email@example.com; and
(f) such information shall be used by Skwirk for the following purposes (and for other purposes as shall be agreed between the Subscriber and Skwirk or required by law from time to time):
(i) the provision of Services (including, but not limited to, the management of the Web Site, communicating with the Subscriber (or any other user), record any complaint); and/or
(ii) the marketing of Services by Skwirk, its agents or distributors; and/or
(iii) analysing, verifying and/or checking the Subscriber's credit, payment and/or status in relation to the provision of Services; and/or
(iv) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Subscriber; and/or
(v) enabling the daily operation of Subscriber's account and/or the collection of amounts outstanding in the Subscriber's account in relation to the Services; and/or
(vi) to collate data for business development purposes.
15.2 Information held by Skwirk may be released and/or exchanged to entities other that the Subscriber, specifically:
(a) a credit reporting agency; for Skwirk to obtain a credit report containing personal credit information about the Subscriber in relation to credit provided by Skwirk;
(b) credit providers, either named as trade referees by the Subscriber, or named in a consumer credit report issued by a credit reporting agency, for the following purposes:
(i) to assess an application by the Subscriber; and/or
(ii) to notify other credit providers of a default by the Subscriber; and/or
(iii) to exchange information with other credit providers as to the status of this credit account, where the Subscriber is in default with other credit providers; and/or
(iv) to assess the creditworthiness of the Subscriber.
(c) third parties authorised by the Subscriber (or any other user) to receive information;
(d) other third parties, required by law, including (where under warrant) law enforcement agencies.
15.3 The Subscriber understands that the information exchanged can include anything about the Subscriber's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.4 The Subscriber consents to Skwirk being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.5 Skwirk may give information about the Subscriber to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Subscriber;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Subscriber.
15.6 The information for actual, or anticipated collection and/or exchange by Skwirk includes:
(a) personal particulars (the Subscriber's name, sex, address, previous addresses, primary contact email address, date of birth, nationality name of employer, driver's licence number, sporting affiliations and other interests);
(b) any correspondence involving the Subscriber's use of the Web Site (emails, posts, comments or opinions, feedback etc.);
(c) other personal information provided by the Subscriber through competitions, surveys or other activities;
(d) non-personally identifiable information (IP address, browser type, pages visited, etc.);
(e) details concerning the Subscriber's application for credit or commercial credit and the amount requested;
(f) advice that Skwirk is a current credit provider to the Subscriber;
(g) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(h) that the Subscriber's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(i) information that, in the opinion of Skwirk, the Subscriber has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Subscriber's credit obligations);
(j) advice that cheques drawn by the Subscriber for one hundred dollars ($100) or more, have been dishonoured more than once;
(k) that credit provided to the Subscriber by Skwirk has been paid or otherwise discharged.
15.7 The Subscriber acknowledges that information held by Skwirk shall be accessed by employees and sub-contractors or Skwirk under the following restrictions:
(a) the information shall only be used for the purpose of performing the duties set by Skwirk;
(b) any required contact to the Subscriber shall be made via email, at no cost or inconvenience, to the Subscriber;
(c) where (b) applies, the employee or sub-contractor will identify themselves as a representative of Skwirk.
15.8 The Subscriber shall have the right to request Skwirk for a copy of the information about the Subscriber retained by Skwirk and the right to request Skwirk to correct any incorrect information about the Subscriber held by Skwirk.
15.9 The Subscriber acknowledges that the Web Site uses a technology called cookies (a small element of data that the Web Site may send to the Subscriber's computer) that may be used to provide the Subscriber with specific information for the purpose of Skwirk's tracking site usage and traffic. These cookies do not read the Subscriber's hard drive but may be stored on the hard drive to enable the Web Site to recognise the Subscriber on return to the same.
15.10 The Subsciber may request to be removed from the any mailing list of Skwirk, and Skwirk will comply with such request.
- Default and Consequences of Default
16.1 Interest on any overdue Subscription Fee shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Skwirk's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Subscriber owes Skwirk any money the Subscriber shall indemnify Skwirk from and against all costs and disbursements incurred by Skwirk in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Skwirk's collection agency costs, and bank dishonour fees).
16.3 Without prejudice to Skwirk's other remedies at law Skwirk shall be entitled to cancel all or any part of any subscription of the Subscriber which remains unfulfilled and all amounts owing to Skwirk shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Skwirk becomes overdue, or in Skwirk's opinion the Subscriber will be unable to make a payment when it falls due;
(b) the Subscriber becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Subscriber or any asset of the Subscriber.
- Security and Charge
17.1 In consideration of Skwirk agreeing to supply Services, the Subscriber charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Subscriber either now or in the future, to secure the performance by the Subscriber of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
17.2 The Subscriber indemnifies Skwirk from and against all Skwirk's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Skwirk's rights under this clause.
17.3 The Subscriber irrevocably appoints Skwirk and each director of Skwirk as the Subscriber's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Subscriber's behalf.
18.1 The Web Site (excluding any linked third party sites) is controlled by Skwirk from their principal business premises in Australia. It can be accessed from countries around the world to the extent permitted by the Web Site. As each country has laws that may differ from Australia, by accessing this site, the Subscriber agrees that the laws and statutes of Australia shall apply to any dealings, actions or claims arising out of, or in relation to, this User Agreement, or the Subscriber's use of the Web Site, irrespective of any conflict with any laws and statutes applicable to the Subscriber's country of domicile.
18.2 The Subscriber further acknowledges and agrees that the filing of a claim against Skwirk (if any) must be made in the State of Australia in which their principal business premises in Australia is domiciled, and that any legal proceedings will be conducted in English.
18.3 Skwirk makes no representation that Services offered through the Web Site are appropriate, available or suitable for use in countries outside of Australia, and accessing any material or Content from, or through, the Web Site which is illegal in your country of domicile is strictly prohibited.
19.1 The failure by Skwirk to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Skwirk's right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 Subject to clause 13, Skwirk shall be under no liability whatsoever to the Subscriber for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Subscriber arising out of a breach by Skwirk of these terms and conditions (alternatively Skwirk's liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
19.3 Skwirk may license or sub-contract all or any part of its rights and obligations without the Subscriber's consent.
19.5 Skwirk shall not be liable, and shall make no allowance, whatsoever where the Subscriber fails to utilise the Web Site for any reason, unless Skwirk confirms special prior arrangements in writing. In the event the Subscriber is unable to access the Web Site, the Subscriber must notify Skwirk immediately.
19.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.7 The Subscriber warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.