Revised: 24 December 2015
Welcome to this website or mobile applications owned and operated by The Trustee for The Fountain Tech Trust trading as EDWY A.B.N. 83 864 971 296 (“EDWY”).
These Terms of Service apply to EDWY’s websites and mobile applications ("Digital Applications") and you should read them before using the Digital Applications.
1.1 “You” and “your” refer to all users of the Digital Applications or Service, including Registered Users, and “we”, “us” and “our” refer to EDWY. References to users must be read as being also a reference to Registered Users.
1.2 “Service” means the Digital Applications’ Content upload service for Registered Users and the Digital Applications’ Content download service for you, in all cases for use in accordance with these Terms of Service. In the case of Registered Users, references to the Digital Applications include a reference to the Service.
1.3 “Registered User” means anyone who has signed up for the Service and has obtained a user ID to log into the Service. Registered Users may set a profile by giving us certain additional information, which we may refer to as your “account”.
1.4 “Content" means:
(a) all digital files (whether courseware description content, images and text, photos, slides, videos, illustrations, gifs, animations, maps and graphics) and products provided on the Digital Applications;
(b) associated metadata (including file author or creator, publisher, language, intellectual property notices, format, version, edition, date, ISSN and ISBN); and
(c) other proprietary information, materials and products, and all copyright protected or otherwise legally protectable elements and functions of the Digital Applications or the Service including the selection, sequence, look and feel, layout and arrangement of items on the Digital Applications.
2. LEGALLY BINDING CONTRACT
2.1 The terms of service in force at any time are published on the Digital Applications and you will be taken to have accepted them by accessing or using the Digital Applications. This is the case whether or not you become a Registered User and regardless of a Registered User’s class, level or status.
2.2 These Terms of Service constitute a binding legal contract between you and EDWY. You will be legally bound when you agree to accept the Service, click an "I agree," "I consent," or other similarly worded "button", check box or entry field on the Digital Applications with your mouse, finger, keystroke, or other data entry mechanism. Those actions are a legal equivalent of your handwritten signature.
2.3 The Digital Applications and these Terms of Service may change without notice, so do check them from time to time. A revision date appears at the beginning of the Terms of Service specifying the date of the last revision.
2.4 If EDWY develops revised terms of service, then on their publication on the Digital Applications they will supersede those they replace. If you subsequently access or use the Digital Applications or the Service you will be taken to have accepted the revised terms of service. If you do not agree with any change or revision of applicable terms of service at any time, do not access, use, upload, submit information to or download from the Digital Applications or use the Service.
2.5 Specific Digital Applications or Service functions, facilities, features, sections, areas, communities, discussion groups, modules, services, sections, menus, offerings and incentives may have provisions additional to these Terms of Service. Those additional provisions must be read with these Terms of Service. If there is an inconsistency between such provisions and these Terms of Service then the provisions of these Terms of Service will prevail to the extent of such inconsistency and the parties must take all necessary steps to remove that inconsistency.
2.6 You represent that you are either 18 years of age or older and are fully qualified and empowered to enter into these Terms of Service or you represent you are a minor over the age of 16 and warrant that you have obtained parental consent.
3. REGISTERED USER – OBLIGATIONS AND WARRANTIES
3.1 Registration and Use
(a) Only Registered Users are permitted to use the Service to upload and offer any Content.
(b) A Register User is permitted to have only one account.
(c) A Registered User will have a unique user ID, that comprises the email address and confidential password the user provides when registering to be a Registered User (or we may assign an initial password which the Registered User may change later). We may provide a Registered User with additional codes or passwords necessary to access and use specific functions, facilities and features of the Service or the Digital Applications.
(d) Registered Users may be required to submit personal information such as full name, email address, postal address, postcode and additional information for territory and digital media rights management, security or identity verification purposes. We may also ask Registered Users to provide us with optional information about yourself, which will enable us to personalise and customise the Service. We will indicate what information is required and what information is optional.
(a) Each Registered User warrants that the Registered User’s details provided to EDWY are true and accurate, including full names, affiliations, phone number and email address.
(b) Registered Users must ensure that the Content they upload is accurate.
(c) Do not upload files, photos or software or post messages to the Digital Applications that contain material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own the rights to them or control the rights under all necessary authority, licenses, permissions, consents and approvals.
(d) Each Registered User:
(i) is responsible for the security and use of the Registered User’s user name and password and must take all reasonable steps to ensure they are kept confidential and secure;
(ii) must not allow any third party or unauthorised person to access the Digital Applications using that user name or password; and
(iii) must immediately notify EDWY of any unauthorised use of a user name or password or any other breach of security.
(e) Each Registered User warrants that the Registered User’s details provided to EDWY are true and accurate, including personal names, affiliations, and email address.
(f) EDWY is not liable for any loss or damage arising from a Registered User’s failure to comply with obligations in these Terms of Service.
Each Registered User warrants and represents that: the Registered User has full power and authority to enter into these Terms of Service and perform the Registered User’s obligations under these Terms of Service; the Registered User is the sole unencumbered owner of the copyright in the Content; the Content does not infringe any rights of any third party including rights of copyright nor does it contain any matter which is unlawful and/or defamatory; and the Registered User has all necessary licences, consents and permissions for material included in the Content. The Registered User indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Registered User of these warranties.
4. LICENCE, PERMITTED USE AND PROHIBITIONS
4.1 Your use of the Digital Applications must not breach these Terms of Service.
4.2 You may not:
(a) for commercial or unlawful purposes solicit personal information from anyone under 18 or solicit passwords or personally identifying information;
(b) harvest or collect user information or email addresses from the Digital Applications for commercial or unlawful use or unsolicited communications;
(c) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person, organisation or entity; or
(d) use automated scripts to collect information from or otherwise interact with the Digital Applications or its users.
4.3 You must act in good faith and state your views or opinions in good faith. Your stated personal views or opinions must be personal views or opinions you in fact hold. Strictly prohibited are statements for or on behalf of clients or third parties by lobbyists, public relations consultants, advocates or any of their respective employees, contractors, agents or representatives. Also strictly prohibited is any activity involving any form of payment in cash or in kind for any comment you make on the Digital Applications.
5. INTELLECTUAL PROPERTY
5.1 The Content and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications are the property of EDWY or their respective owners, unless noted otherwise.
5.2 The Digital Applications is protected by law including copyright in any layout, text, images, photographs, illustrations, animations, audio clips, video clips, programming and HTML code. No part of the Digital Applications may be used, copied, modified, changed, distributed, republished or transmitted, except for permitted uses. All rights not specifically and expressly granted in these Terms of Service or on the Digital Applications are reserved by EDWY or their respective owners.
5.3 For any written permissions, email EDWY (see email address on the Digital Applications) or the relevant copyright owner or controller.
5.4 All names, logos and signs on the Digital Applications are the trade marks of their respective owners. This is our trade mark: EDWY™.
6. LICENCE AND CONSENT
6.1 By posting any communication to the Digital Applications (eg comment, enquiry, rating, forum post or other message), you automatically grant to EDWY, its licensees and assigns an irrevocable, perpetual, non-exclusive, free of charge licence throughout the world for the purposes of using, publishing and displaying that communication.
6.2 You irrevocably consent to all EDWY’s acts or omissions (including as an author and publisher) as they may affect any moral rights you may have in that communication or uploaded Content. Specifically you consent to EDWY’s, or others authorised by EDWY, carrying out any change, re-arrangement, mixing, translation, reformat, adaptation, re-purposing, re-design, addition, deletion or editing of that communication or Content and combination of it with other material.
6.3 EDWY accepts no liability for such communication. It is the opinion, responsibility and legal liability of its maker or poster.
6.4 It is a condition of your access to the Digital Applications, that you must not post any such communication that in EDWY’s opinion is:
(a) in any way unlawful, threatening, intimidating, harassing, stalking, inflammatory, fraudulent, abusive, indecent or obscene, or would inhibit use and enjoyment of the Digital Applications by others;
(b) involving you in contacting anyone who has asked not to be contacted;
(c) defamatory or derogatory of other persons;
(d) infringing the rights of third parties, including breach of privacy obligations, intellectual property rights of others, or their moral rights (as defined in the Copyright Act 1968 (Cth));
(e) untrue, misleading or deceptive;
(f) discriminatory, offensive or capable of inciting violence or hatred;
(g) in breach of any applicable laws or regulations;
(h) commercial advertising;
(i) using offensive language;
(j) using a misleading email address or otherwise manipulates identifiers which disguise the origin of information communicated or transmitted through the Digital Applications;
(k) an intentional post in an irrelevant category or thread or involving an off the topic comment, a repeated post with the same or similar information unless it is a recurring activity, or an otherwise unreasonable load on the Digital Applications;
(l) an attempt to gain unauthorised access to EDWY’s computer systems or activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Digital Applications; or
(m) a file or code containing a virus, trojan, malware or worm.
6.5 In Australia and other countries, feedback, ratings and comments may be defamatory. EDWY accepts no liability for any claim, demand, action, loss, damage, cost, charge, fine or expense that may arise from feedback, ratings or comments. You release forever and indemnify EDWYfrom any liability forany feedback, ratings or comments by you on the Digital Applications.
6.6 As regards your personal information, information relating to your IP address, or other data submitted or posted by you, EDWY may in certain cases be legally obligated to disclose such data to law enforcement agencies, intellectual property owners and others. EDWY may disclose such data as legally required or at its discretion following review by us.
7. COMMUNICATIONS WITH REGISTERED USERS
If you register as a Registered User of the Digital Applications, you agree that EDWY may from time to time send communication to you, such as alerts and enewsletters, regarding your interests, or confirmations regarding your use of the Digital Applications or Service.
8.1 Paid Membership Subscription
(a) You may subscribe for a paid EDWY membership or subscription. The applicable price is indicated on the relevant Digital Applications’ membership or subscription page or screen.
(b) Content is subject to certain licensing and use rights restrictions referred to on the Digital Applications or set out in these Terms of Service.
(c) Select carefully, we do not offer refunds on paid membership subscriptions.
(d) You must enter your credit card details directly into the credit card payment section used by the Digital Applications. You must ensure that you have sufficient available credit on your credit card to allow any charges to be processed. You agree that if your payment of charges by credit card are not received by us or if the payment is subsequently dishonoured or charged back to us, you are personally liable to us for the amount you owe us for any charges and any resulting charges or costs which we may incur.
8.2 Membership Subscription Prices
All membership subscription prices on the Digital Applications or for the Service are in Australian dollars and are inclusive of goods and service taxation (“GST”) or other value added tax. The total cost of your order is the price of the Content, GST, and any delivery, packaging, service or credit card charges. Prices for Content may change at any time. We will charge you the price that is displayed on the Digital Applications or communicated by us at the time you buy or license Content.
8.3 Content Use Limitations and Prohibitions
(a) Content that you license from this Digital Applications cannot be transferred or assigned by you to any other person.
(b) You must not alter, delete, or conceal any copyright or other intellectual property or other notices on Content.
(c) Digital rights management, intellectual property and security technology protection may be provided with or in the Content and you must not directly or indirectly circumvent, reverse engineer, decrypt, or otherwise alter, change, modify, restrict or interfere with such protection or any of the means by which we monitor and administer the protection.
(d) We will use reasonable endeavours to supply the Service to you. However, despite our efforts, the Service may not be continuous, accessible or available at all times, or fault free, and we may at any time change or discontinue the Service. Also, events beyond our control might affect the Service, and you agree that we are not responsible for any effects of those events.
(e) As regards the Service you are solely responsible for all Content that you upload or download. We are not responsible for any Content lost, damaged or deleted. We are not obliged to maintain a record of the Content you upload or download.
(f) If we no longer have the right to make certain Content available, for any reason and at any time, you will no longer be able to obtain or use that Content from EDWY, even if you originally obtained it from us.
EDWY may change or discontinue any Digital Applications or Service function, facility, feature, section, area, community, discussion group, module, service, section, menu, offering, incentive, password, or user.
8.5 Feedback and Performance Rating System
(a) The feedback and performance rating system (if any) of the Digital Applications consists of comments left by other Registered Users and a composite feedback number compiled by us. The composite number without the comments does not convey that Registered User’s full user profile.
(b) The overall performance rating determines a Registered User’s rating. A negative rating will decrease the rating by 1, a neutral rating will not affect the rating and a positive rating will increase the rating by 1.
(c) Feedback and ratings must be honest and objective.
(d) You must not include any contact details or personal information in your feedback.
(e) You must not take any action which may undermine the integrity of the feedback and performance rating system. We reserve the right to automatically suspend any Registered User with feedback or ratings below an acceptable minimum determined at EDWY’s sole discretion from time to time.
8.6 Facility for Accommodation Advertisements
EDWY may display advertisements from individuals or organisations seeking or offering accommodation. It does not endorse or recommend the accommodation advertised or the prospective landlord or tenant. Further, it does not verify or approve the content in the advertisements. By using the Digital Applications and in particular any section relating to accommodation you agree it is your responsibility to make your own full enquiries and if necessary obtain professional advice.
EDWY will not be liable for any loss or damage suffered by you arising from or incurred due to any accommodation accepted, provided or decisions made by you based on information displayed in advertisements on EDWY.
8.7 Facility for Job Vacancy Advertisements
EDWY may display resumes or advertisements from individuals or organisations seeking employment or assignments. It does not endorse or recommend the resumes, positions advertised or the prospective employees or employers. Further, it does not verify or approve the content in the resumes or advertisements. By using the Digital Applications and in particular any section relating to job vacancies you agree it is your responsibility to make your own full enquiries and if necessary obtain professional advice.
EDWY will not be liable for any loss or damage suffered by you arising from or incurred due to any decisions made or employment positions accepted or provided by you based on information displayed in resumes or advertisements on EDWY.
9.1 EDWY may issue tax invoices to Registered Users but has no responsibility for determining the necessity of or for issuing any invoice, or for determining, remitting, or withholding any tax or impost of any kind (including withholding tax, stamp duty, goods and services tax and any other type of value added tax) in connection with any use of the Digital Applications.
9.2 Where goods and services taxation (“GST”) applies, EDWY may deduct the GST it incurs from each user's payment and EDWY may issue the user with a tax invoice.
9.3 Each Registered User is solely responsible for determining its own obligations and compliance responsibilities (or that of any related entity) under applicable law. You and any related entity hereby jointly and separately indemnify EDWY with respect to all such obligations and responsibilities.
10. THIRD PARTY PRODUCTS AND SERVICES
No endorsement, recommendation or approval of any third party or its products, services, or websites is intended by any content, links or third party advertisements (including any banner ads containing embedded hyperlinks) on or to the Digital Applications or the Service. Links are provided only as a convenience. Some third party advertisements contain representations or offers by the third party advertiser which you can accept by linking to the advertiser's website and executing the relevant transaction. Such offers are not made by EDWY, and we are not responsible to you for any transactions you have with any third party.
11. LINKS POLICY
You are welcome and encouraged to create links to the Digital Applications. If you are using frames, when they are activated you must ensure they do not continue to display your frames, or frames of others, around the Digital Applications pages.
You indemnify EDWY from and against all demands, claims, actions, proceedings, settlements, liability, expenses, fines, damages, costs or losses (including but not limited to reasonable costs and disbursements on a solicitor and client basis) arising from or incurred due to your activities on or use of the Digital Applications, any breach by you of these Terms of Service, or any demand or complaint made by another user against you for any comment, submission, post or material made or added by you or authorised by you for the Digital Applications.
13. DISCLAIMERS AND LIABILITY
13.1 The Competition and Consumer Act 2010 (Cth) and other legislation confers rights and remedies in relation to the provision of goods and services which cannot be excluded, restricted or modified. Despite anything to the contrary in these Terms of Service, the disclaimers and limitations specified in these Terms of Service only apply to the maximum extent permitted by such legislation and do not exclude, limit or modify remedies under such legislation.
13.2 The Digital Applications is provided for informational purposes only and is not intended as professional advice, or as a substitute for the professional advice. You should not act on the basis of anything contained on the Digital Applications without first obtaining any necessary or prudent professional advice.
13.3 All care and diligence is taken to ensure the accuracy and currency of information. However, your use of the Digital Applications is at your risk. The Digital Applications is provided “as is” and you accept and use it at your own risk. You have received no promise, guarantee, representation, warranty or undertaking regarding the profitability of or any other consequence or benefit to be obtained from use of the Digital Applications, except as expressly specified in these Terms of Service.
13.4 To the full extent it is lawful or possible to do so and except as may be expressly specified in these Terms of Service, all conditions, warranties, representations and liability, whether express or implied, are disclaimed and excluded as to the Digital Applications and its description, quality, performance or fitness for its purpose. In particular, we do not warrant that the operation or performance of the Digital Applications will be uninterrupted or error-free, except as may be expressly specified in these Terms of Service.
13.5 EDWY, its affiliates, related bodies corporate, directors, officers, agents, employees, contractors, editors, moderators, consultants, and authors with content on the Digital Applications, and the internet service provider hosting the Digital Applications make no representation and accept no responsibility or liability for:
(a) error, omission, service interruption, unreliability, lack of timeliness, inaccuracy, misleading information or anything done or not;
(b) loss of data, theft, delays, non-deliveries, misdeliveries, or service interruptions caused by their negligence, errors or omissions;
(c) demands, claims, actions, proceedings, settlements, liability, expenses, damages, costs or losses of any type which may be incurred (either actual or contingent) in the event of any loss, damage, destruction of tangible or intangible property (including equipment, computer programs and data or any loss of use of any of them), death, bodily injury, disability, sickness, disease, mental incapacity, insanity, accident or event whether relating to you or third parties, wilful, unlawful or negligent act or omission or breach of the law, violation of any statute, regulation, by-law or ordinance; or
(d) special, incidental, indirect, consequential, exemplary, or punitive damages of any type (including damages for loss of profits, business interruption, or loss of reputation, data or computer programs);
whether based on contract, equity, statutory law, tort, criminal law, property, bailment, trust, unjust enrichment or any other legal theory, arising out of the delivery, installation, training, use, performance or support of the Digital Applications or if you use, upload, download, or act in reliance on any representation, information or data contained, linked or distributed through the Digital Applications.
13.6 The disclaimers limitations of liability, exclusions of liability, and recommendations in the preceding paragraphs apply to all content on the Digital Applications and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications.
Without limitation to other provisions in these Terms of Service, EDWY may at its discretion refuse to provide the Service, suspend or terminate any access or account you may seek or have for the Digital Applications. EDWY may do so, for example but without limitation, if it believes you will breach or have breached these Terms of Service or have submitted false, inaccurate, untrue, unauthorised or incomplete information or Content; if a request is made by law enforcement or other government or regulatory authorities; or due to technical difficulties. This includes any access right you may have as a Registered User. Further, these Terms of Service are revocable at any time without notice and with or without cause.
In these Terms of Service, unless the context otherwise requires:
(a) a reference to any legislation, regulation, proclamation, ordinance, by-law, industrial award or other statutory instrument or rules includes a reference to all legislation, regulations, proclamations, ordinances, by-laws, industrial award and statutory instruments or rules amending, consolidating or replacing it or made or issued under it;
(b) a reference to these Terms of Service is a reference to these Terms of Service as may be varied, supplemented, novated, or replaced from time to time;
(c) words in the singular number include the plural and vice versa;
(d) headings, underlines, indexes and lists of contents are for convenience only and have no effect on interpretation;
(e) "including" and like terms mean "including but not limited to";
(f) a failure to comply, observe or perform an obligation constitutes a breach of an obligation; and
(g) no rules of construction apply to the disadvantage of one party on the basis that it offered or drafted these Terms of Service or part of it.
17.1 Relationship of Parties
Nothing in these Terms of Service is to be taken to create a fiduciary relationship or a relationship of partnership, agency, employment, trust or joint venture between any of the parties.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Digital Applications will be barred if it is not filed within one (1) year of the cause of action arising.
These Terms of Service are subject both to any agreement between you and EDWY which expressly supersedes these Terms of Service, and, to any mandatory statutory or common law to the country applicable in the governing law and jurisdiction applying to these Terms of Service below.
These Terms of Service or any part of them may be varied, modified, amended, added to or substituted only by a document in writing executed by the parties.
No provision of these Terms of Service is to be taken to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.
If a provision, or part of it, of these Terms of Service is held invalid, unenforceable or illegal by a judicial authority for any reason, then that provision or part must be read down if possible but if that cannot be done then it must be severed and the balance of these Terms of Service will otherwise remain in full force.
17.7 Governing Law and Jurisdiction
(a) United States
If you are located in the United States, these Terms of Service must be interpreted and governed by the law of the State of California, USA. If a dispute arises in relation to them it must be subject to the exclusive jurisdiction of the courts of California, USA.
(i) Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and EDWY arising under or related in any way to these Terms of Service, must be resolved through binding arbitration as described in this clause. These Terms of Service to arbitrate are intended to be interpreted broadly. They include, but are not limited to, all claims and disputes relating to your use of any of EDWY Content and Service.
(ii) You agree that by entering into these Terms of Service, you and EDWY are each waiving the right to trial by jury or to participate in a class action. You and EDWY agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted.
(iii) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this clause. For any claim where the total amount of the award sought is US$10,000 or less, the AAA, you and EDWY must abide by the following rules: (a) the arbitration must be conducted solely based on written submissions; and (b) the arbitration must not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds US$10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: San Francisco, CA, Denver, CO, or New York, NY. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event these Terms of Service to arbitrate are held unenforceable by a court, then the disputes that would otherwise have been arbitrated will be exclusively brought in the state or federal courts located in San Francisco County, California. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret must be exclusively brought in the state and federal courts located in San Francisco County, California.
(b) EEA and Switzerland
If you are located in the European Economic Area (EEA) or Switzerland, these Terms of Service must be interpreted and governed by the law of England. If a dispute arises in relation to them it must be subject to the exclusive jurisdiction of the courts of London, England.
(c) Australia and Elsewhere
If you are located in Australia or a jurisdiction not specified in clauses 17.7(a) and (b), these Terms of Service must be interpreted and governed by the law of the State of New South Wales and the Commonwealth of Australia as applicable. If a dispute arises in relation to them it must be subject to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
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