TERMS OF ACCEPTABLE USE – Platinum Plans
This document contains the terms and conditions that govern your access to and use of the Art of Mentoring® Services. By using our Services, you agree to the terms of this document, as updated from time to time.
- Amendments to Terms of Acceptable Use. We reserve the right to amend this Terms of Acceptable Use agreement at any time by posting the amended terms on the Website. If we make material changes to this Terms of Acceptable Use agreement, we will notify you so that you can access and review the changes. By continuing to use the Services after notice of the change has been sent to you or published on the Website, you are deemed to have consented to the changes.
- Access to the Program. We grant you access to make personal and non-commercial use of the Services and make the Program available to your Participants. The Services are licensed, not assigned, which means you acquire the rights to use the Services as described in these terms, but you do not acquire ownership of the Services.
- Use of the Services. To ensure that our Services are available for your Participants to use, you agree that you will not, and your Participants will not:
- use the Services or Program for commercial or revenue-generating activities;
- use the Services or Program in a way that might damage or harm the reputation or goodwill of Art of Mentoring Pty Ltd or its affiliates (AoM);
- use the Services or Program in a way that might disable, overburden or impair AoM’s ability to provide the Services or Program to others;
- distribute, transmit, display, perform, reproduce, publish, license, create derivative works from the Program or transfer the Services; or
- re-sell the Program, unless expressly authorized by us or sell any information, or products obtained from the Program.
- except as provided in Clause 4 below, copy or modify any of the graphics, text, video, audio, forms, surveys, questionnaires, templates or other Content that we make available to you when we provide the Program;
- reverse engineer, decompile or disassemble, or otherwise tamper with the Program or the Services, whether in whole or in part;
- create any derivative works from the Program;
- circumvent or bypass any technological protection measures relating to the Services;
- use or register, seek to use or register, any trademarks, designs or logos uses in relation to the Program;
- Copying of Documents. You are permitted to copy, print and distribute to your Participants downloadable .pdf, .docx, .doc, .ppt, .pptx, .jpg and .zip documents contained in the Resources, Application and Communications section of the Program. Your Participants 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 Program. Permission to copy, print and distribute under this Clause 4 is granted, provided that (1) the following copyright notice: “© 2019 Art of Mentoring Pty Ltd” appears on all copies, and (2) no modifications of any documents are made, unless:
- the Program prompts or requires to you modify, amend, input or submit information or materials;
- the document is provided as an editable template for you to modify, amend, input and submit information and materials;
- 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.
- Your Content. You (and your Participants) 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 agree to indemnify and hold AoM harmless for any claim or demand arising out of Your Content or your or your Participant’s use of the Services and/or the Program.
- Interaction with other Participants. The Program functions to connect Participants as mentors and mentees in a virtual information place. As a facilitator, AoM is not directly involved in the actual interactions between the Participants of the Program. As a result, AoM has no control over the truth, accuracy, quality or legality of any information or material posted by any Participant. AoM shall have no responsibility to confirm or verify the qualifications, background or ability of a Participant.
- Suspension and Termination. This Agreement may be immediately terminated by AoM in the event:
- You or your Participants breach this Agreement or any AoM policy;
- We believe that you or your Participants actions may cause legal liability for us or a third party;
- You or your Participants conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of AoM and/or the Services;
- You or your Participants conduct poses a security risk to the Services or any part thereof;
- We suspect that you or your Participants have engaged in fraudulent or deceptive activity in connection with the Program.
- You have ceased to operate in the ordinary course of business, 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 access to the Services and/or prevent you and/or your Participants from access to the Program. Upon termination of this Agreement, you shall discontinue your use of the Services and ensure your Participants shall discontinue use of the Program. In particular, you and your Participants shall cease all use of the Intellectual Property and shall promptly return, or if instructed by us, 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.
- 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 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.
- Intellectual Property.
- Subject to any intellectual property rights in respect of Your Content, all Intellectual Property in the Services and Program, including, without limitation, all copies, derivatives and improvements in respect of the Services and/or Program, and all related documentation and materials 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 agreement.
- You will not take any action that would impair, denigrate, convey ownership in or damage AoM Holdings’ Intellectual Property.
- Representations and Warranties. The Program 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 the Program or our Services. Given the changing nature of laws, rules and regulations, and the inherent hazards of the internet, there may be delays, omissions or inaccuracies in our Services. We do not guarantee continuous, uninterrupted or secure access to our Services or the Program, and the operation of our Services or the Program may be interfered with by numerous factors outside our control.
AOM HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE PROGRAM, 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 SERVICES. 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 SERVICES AND/OR PROGRAM.
AOM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF OR IN RELATION TO THE INTERACTION BETWEEN MENTOR AND MENTEE PARTICIPANTS ON THE PROGRAM, THE TRUTH, ACCURACY, QUALITY OR LEGALITY OF ANY INFORMATION OR CONTENT POSTED BY ANY PARTICIPANT, AND THE QUALIFICATIONS, BACKGROUND OR ABILITY OF ANY PARTICIPANT.
- Limitation of Liability. These Terms of Acceptable Use are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, AoM limits its liability in respect of any claim to, at AoM’s option:
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
Should any liabilities apply:
- AoM’s total aggregate liability for all claims relating to these Terms is limited to the fees payable for the Services; and
- Either party’s liability for any claim relating to these Terms will be reduced to the extent to which the other party contributed to the damage arising from the claim.
AoM shall not be liable for loss of contract, loss of profit or revenue, contractual claims of third parties, economic loss, loss of production, business interruption, loss of data, production stoppage, or consequential or indirect loss or damage.
The limitation and exclusion of liability in this Clause 13 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.
- Links to Third Party Websites. The Program 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The obligations contained in Clauses 9, 10 and 13 shall continue in force notwithstanding the termination of this Agreement.
- Nothing in this Agreement or the provision of the Program or Services establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.
- This Agreement, the Project Approval form and invoice, 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.
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 means all information and materials provided to Participants in the Program, whether in printed or electronic format, downloadable or non-downloadable:
- Text material, audio recordings, video recordings, graphics, gamification, quizzes, surveys, and questionnaires;
- Templates, forms, publications, and training materials;
- Courses, modules, seminars and webinars.
- Program functionality features and tools including reminders, email, chat and messaging functions; and
- Graphical user interfaces associated with the Program.
- 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.
- presentations, training and workshops;
- support and consultancy services;
- on-boarding and Program set-up;
- providing program management services for Participants;
- hosting and facilitating webinars attended by Participants;
- the provision of the Content to Participants via AoM’s proprietary software platform; and
- dashboard, data analytics and reporting tools, including providing reports on the progress of the matched Participants via AoM’s proprietary software platform.
- 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.