Terms of Acceptable Use – Platform

1. Access to Platform

This document contains the terms and conditions that governs your access to and use of the Art of Mentoring® mentoring platform. By using the Platform, you agree to this document, as updated from time to time.

2. Amendments to Policy

We reserve the right to amend this Terms of Acceptable Use policy at any time by posting the amended terms on the Website. If we make material changes to this Terms of Acceptable Use policy, we will notify you so that you can access and review the changes. By continuing to use the Platform after notice of changes has been sent to you or published on the Website, you are deemed to have consented to the changes.

3. Mutual Licenses

If applicable, the Software Licence Agreement governs the terms of your license. The license granted to you and your Users is a non-exclusive, non-transferable, non-sub licensable license to access and use the Platform. All rights not expressly granted to you are reserved and retained by Art of Mentoring Pty Ltd (AoM).

You grant us a non-exclusive, non-transferable license to use Your Content, as defined in Clause 7 below, solely in connection with our provision of the Services.

4. Use of Platform

Your use of the Platform is for personal and non-commercial use. You will not, and ensure Your Users will not:

• • use the Platform, Website or the Services for marketing, commercial or revenue-generating activities;
  • modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Website, except as expressly permitted in Clause 5 below;
  • circumvent or bypass any technological protection or security measures relating to the Website or use of the Services;
  • publish, copy, rent, lease, lend or create any derivate works from or of the Intellectual Property, except as expressly permitted in Clause 5 below;
  • use or register, seek to use or register, any trademark the same or similar to ART OF MENTORING and or the FLYING DUCK Logo;
  • copy, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Intellectual Property, whether in whole or in part; or
  • use the Platform in any unauthorized way that could interfere with anyone else’s use of the Platform;
  • upload viruses or other malicious code to the Website;
  • post content that is discriminatory, malicious, misleading or unlawful, including but not limited to any content that is or contains hate speech, is threatening, pornographic or incites violence.

You will ensure that all Users comply with all obligations under this Agreement and, if applicable, that the terms of your agreement(s) with each User are consistent with this Agreement. If you become aware of any violation of obligations under this Agreement by a User, you will immediately terminate such User’s access to the Platform.

5. Copying of Documents

You are permitted to copy, print and distribute to your Users downloadable .pdf, .docx, .doc, .ppt, .pptx, .jpg and .zip documents contained in the Resources, Application and Communications section of the Platform. Your Users are permitted to copy and print for their personal use downloadable .pdf, .docx, .doc, .ppt, .pptx, .jpg and .zip documents contained in the Resources, Application and Communications section of the Platform. Permission to copy, print and distribute under this Clause 5 is granted, provided that (1) the following copyright notice: “© 2018 Art of Mentoring Pty Ltd” appears on all copies, and (2) no modifications of any documents are made, unless:

1. 1. the Platform prompts or requires to you modify, amend, input or submit information or materials; and
   2. the document is provided as an editable template for you to modify, amend, input and submit information and materials; and
   3. any such modification, amendment, input or submission does not infringe, impair, assign, transfer or dilute the Intellectual Property of AoM and, should the same occur, you hereby agree to amend or remove such modification, amendment, input or submission as requested by and in the sole discretion of AoM.

The rights contained in this Clause 5, do not include the copying or re-transmitting of the layout of the Website. Elements of the Website are protected by trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from the Website may be copied or retransmitted unless expressly permitted by AoM or applicable law.

No other right to copy, print, download, distribute or transmit products or services obtained from the Website or the Services is granted to you or your Users except as provided in this Clause 5.

6. Your Content

You (and your Users) are able to upload (or have us upload on your behalf) text, images and data. All such content that is uploaded by you or provided to us by you is deemed “Your Content.” You are solely responsible for all of Your Content. You represent and warrant that Your Content will not violate any law or constitute an infringement or other violation of any intellectual property right or non-disclosure right of a third party. You will indemnify and defend us, and our directors, officers and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses (“Claims”), incurred by us in connection with any actual or threatened third-party claim arising directly or indirectly from our use of Your Content as provided in this Agreement.

7. Interaction with other users

The Platform functions to connect other users as mentors and mentees in a virtual information place. As a facilitator, AoM is not directly involved in the actual interactions between the users of the Platform. As a result, AoM has no control over the truth, accuracy, quality or legality of any information or Content posted by any users. AoM shall have no responsibility to confirm or verify the qualifications, background or ability of users.

8. Customer Terms of Use

You may provide us with your own terms of use (“Customer TOU”) and/or privacy policy (“Customer Privacy Policy”) for us to incorporate into your platform of the Services. If you choose to do so, such Customer TOU and/or Customer Privacy Policy shall supplement the AoM Terms of Acceptable Use and AoM Privacy Policy, but shall not replace it/them. In the event of any conflict between the Customer TOU and/or Customer Privacy Policy with the AoM Terms of Acceptable Use and AoM Privacy Policy, the AoM Terms of Acceptable Use and AoM Privacy Policy shall control. Users will be required to acknowledge and agree to the AoM Terms of Acceptable Use and AoM Privacy Policy. You agree that if a Customer TOU and/or Customer Privacy Policy are provided by you, that such Customer TOU and/or Customer Privacy Policy shall be in compliance with all applicable law (including, without limitation, all data privacy laws.)

9. Suspension and Termination.

This Agreement may be immediately terminated by AoM in the event:

• • You or your Users breach this Agreement or any policy;
  • We believe that you or your Users actions may cause legal liability for us or a third party;
  • You or your Users conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of AoM and/or the Platform, Services or Website;
  • You or your Users conduct poses a security risk to the Platform, Services or Website;
  • We suspect that you or your Users have engaged in fraudulent or deceptive activity in connection with the Services.
  • You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

Without limiting other remedies available, we may, in our sole discretion, immediately issue a warning, suspend, indefinitely suspend or terminate your license and/or prevent you and/or your Users from access to the Platform. To protect the integrity of the Platform, AoM reserves the right at any time in its sole discretion to block Users from certain IP addresses from accessing the Platform, Website and/or the Services.

Upon termination of this Agreement, you shall discontinue your use of the Platform and ensure your Users shall discontinue use of the Services. In particular, you and your Users shall cease all use of the Intellectual Property and shall promptly return, or if instructed by the other party, destroy all Confidential Information in your possession.

Termination of this Agreement by us shall not limit your obligation to pay all fees due and payable, nor restrict us from pursuing any other remedies available to us, including injunctive relief. The following provisions of this Agreement shall survive its termination: Clause 4, 6, 10, 11, 12, 13 and 14.

10. Confidential Information

Each party may have access to confidential or proprietary information of the other and accordingly agrees to disclose such information only to its personnel who have a need to know such information in connection with the performance of this agreement. Each party will only use confidential information of the other only in connection with the performance of this agreement.

However, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Confidential Information shall not include information that the receiving party can establish: (a) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (b) is rightfully received by the receiving party from a third party without confidentiality restrictions; (c) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party hereunder; or (d) is independently developed by the receiving party.

11. Intellectual Property

1. 1. All Intellectual Property is owned by Art of Mentoring and/or its Licensor. No license is granted in respect of the Intellectual Property other than as set out in this Agreement
   2. Subject to any intellectual property rights in respect of Your Content, all Intellectual Property in the Platform, Website and Services is owned by Art of Mentoring Holdings Pty Ltd (ABN 23 620 127 326) (AoM Holdings). No license is granted in respect of the Intellectual Property other than as set out in this policy, your Project Approval Agreement and/or your Software Licence Agreement, whichever is applicable. AoM Holdings retains all title to, and except as expressly licensed herein, all rights to the Services, Website and/or Platform, including, without limitation, all copies, derivatives and improvements in respect of the Services and all related documentation and materials.

You will not take any action that would impair, denigrate, convey ownership in or damage AoM Holdings’ Intellectual Property.

12. Privacy

The Services cannot be performed without AoM processing data about you and your Users. We will adhere to the relevant privacy laws of the jurisdictions in which we maintain an establishment or collect or hold personal data. All information that we collect, access or use will be handled in accordance with the Privacy Policy (AoM Privacy Policy) published on the Website. We assume no liability for personal data other than the requirement to handle it in accordance with the AoM Privacy Policy.

13. Representations and Warranties

The Platform is provided “AS IS” and “AS AVAILABLE”, to the extent permitted by law, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of our Services. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in our Services provided on the Website. We do not guarantee continuous, uninterrupted or secure access to our Services on the Website, and the operation of our Website may be interfered with by numerous factors outside our control.

AOM HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE PLATFORM, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. AOM DOES NOT MAKE ANY ASSURANCES WITH REGARD TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM THE USE OF THE PLATFORM. IN NO EVENT SHALL AOM BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM.

AOM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF OR IN RELATION TO THE INTERACTION BETWEEN MENTOR AND MENTEE USERS ON THE PLATFORM, THE TRUTH, ACCURACY, QUALITY OR LEGALITY OF ANY INFORMATION OR CONTENT POSTED BY ANY USER, AND THE QUALIFICATIONS, BACKGROUND OR ABILITY OF ANY USER.

14. Limitation of Liability

You agree to indemnify and hold AoM harmless for any claim or demand arising out of any Content you or your Users submit, post or transmit or otherwise make available through the Platform.

Neither party shall be liable for any consequential or indirect loss or damages, including, loss of contract, loss of profit or revenue, contractual claims of third parties, economic loss, loss of production, business interruption, loss of data and production stoppage.

The limitation and exclusion of liability in this Clause 14 applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.

15. Links to Third Party Websites.

The Platform may contain links to the websites of third parties. The linked sites are not under the control of AoM and AoM is not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such sites. AoM is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by AoM of the site.

16. Miscellaneous

1. 1. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New South Wales, Australia without regard to conflicts of law principles. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be restated to reflect as nearly as possible the original intent of the parties and the remainder of the provisions shall remain in full force and effect.
   2. Other than in connection with seeking equitable relief to enforce rights involving confidential information or Intellectual Property, the parties agree that any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
   3. AoM may assign, transfer or otherwise dispose of its rights and obligations under this Agreement, in whole or in part, at any time. You may not assign this contract or transfer any rights hereunder.
   4. No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching party shall be construed as a waiver of that breach by the non-breaching party nor as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching party.
   5. Neither party shall be liable for any failure or delay in performance due to circumstances beyond its reasonable control, which shall include, without limitation, acts of God, earthquakes, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, or any other such occurrences.
   6. The obligations contained in Clauses 8, 12, 13 and 16 shall continue in force notwithstanding the termination of this Agreement.
   7. Nothing in this Agreement or the provision of the Platform, Website or Services establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.

This Agreement and any schedules, addenda or order forms accepted hereunder constitute one and the same legally binding instrument and the entire agreement between the parties and supersede all prior oral or written agreements between the parties with respect to the matters provided for herein.

17. Definitions

AoM refers to Art of Mentoring Pty Ltd (ABN 31 620 225 372) trading as “Art of Mentoring” with an address at Level 5, 115 Pitt Street, Sydney NSW 2000

Content is content that is uploaded by you as defined in Clause 7 above.

Intellectual Property includes:

• • trade names, brand names, trade symbols, logos, slogans, trademarks, domain names, company names, service marks, images, articles, data and video, sound recordings, graphics, patents, databases, forms, surveys, questionnaires, publications, articles, printed materials, templates, websites (whether registered or not) and whether in electronic or printed format;
  • computer software (in object code and source code form) including algorithms, subroutines, routines, and modules, their arrangement, organisation, and methods of interaction, and all related documentation, data formats, output formats, script, programming code, data, information or HTML script developed or provided; and
  • mentor and mentee matching algorithms, mentor and mentee application questions, survey questions, mentor and mentee application templates, tools and matching functionality; participant and group participant search and matching functions; communication tools and computing utilities, including reminders, invitations, scheduling and customized email tools; mentor and mentee reporting and data analysis; collection and compilation of data algorithms and tools; database management functions; and integrated mentor training tools and computing utilities.

Platform refers to the Services provided on the Website by AoM

Services refers to the software services, and associated training services, training materials, documents, forms, surveys, questionnaires, images, databases, matching-algorithms, videos and information provided by AoM for the purposes of establishing and operating a mentoring program for the end-users on the Website

User refers to the Customer’s employees, members or authorised users of the Services

We, us or our refers to AoM

Website refers to the website at www.artofmentoring.net and any other website (the Website) owned and controlled by AoM

1. Interpretations

   In this Agreement unless the context otherwise requires:

   • clause and sub-clause headings are for reference purposes only;
   • the singular includes the plural and vice versa;
   • reference to a person includes any other entity recognized by law and vice versa;
   • where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
   • any reference to any agreement or document includes that agreement or document as amended at any time;
   • the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it;
   • the expression at any time includes reference to past, present and future time and the performance of any action from time to time;
   • except as otherwise provided in this agreement, an agreement, representation, indemnity, warranty on the part of two or more persons binds them jointly and severally; and

reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

18. Use of Your Company Name and Logo.
We may on occasion use your Company Name and Logo in external marketing material as well as in announcements to the Australian Stock Exchange. In addition, we may state the current value of your contract with us and its potential lifetime value when referencing your Company Name and Logo for the aforementioned purposes.