Gecko Learning Terms of Trade
End User Licence Agreement
BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT (HEREINAFTER "AGREEMENT"). YOU WILL BE ASKED TO REVIEW AND ACCEPT OR NOT ACCEPT THE TERMS OF THE AGREEMENT. YOU ARE NOT AUTHORISED TO USE THIS SOFTWARE APPLICATION OR ANY RELATED SERVICES UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS AGREEMENT.
This Agreement is a binding legal agreement between you (hereinafter "Customer") and JWGecko Innovation Pty Ltd (hereinafter "JWG") trading as Gecko Learning (hereinafter "GL") for the materials accompanying or associated with this Agreement, including the Internet application, associated media, printed materials and any "online" or electronic documentation (hereinafter the "Software"). By accessing the Software, you agree to be bound by the terms of this Agreement. Any use of the software, payment of our invoices, acceptance of our proposals or quotations are deemed as acceptance of this Agreement. If you do not agree to the terms of this Agreement, do not access or attempt to use the Software.
WHEREAS, JWG is engaged in the business of providing software products as a service web site hosting and related services under the name of JWG and GL,
WHEREAS, Customer desires to retain JWG to perform the Services provided for in this Agreement,
NOW, THEREFORE, JWG and Customer agree as follows:
- The Gecko Learning Products
The Gecko Learning Terms of Trade are specifically different to the standard JWGecko Terms of Trade and apply to the following products made available via the Gecko Learning web site:
- VET BI
- VET Map
- VET Comply
- AVETMISS Done!
- Scope of Services
JWG will use reasonable endeavours to provide access and use of the Software
- Price and Payment
JWG provides a combination of both Free and Paid services on the GL site.
- Where the services are free then the following terms prevail:
- The scope of the services may change at any time and without notice
- The services may be terminated at any time and for any reason without notice
- Where the services are paid for then the following terms prevail:
- All payments will be made in of advance of services being provided.
- When a paid period of service expires, the services will be withdrawn until further payment is made. Customer data will be retained on our systems for a reasonable period of time following termination of this agreement, at our sole discretion.
- All payments are non-refundable.
- Term and Termination
The term of the agreement is the term for which the service is subscribed for and provided.
- Customer Service
GL will provide basic support services via the JWGecko support portal, including online documentation and by email response at no charge only at our discretion. Additional support services may be provided by us under a separate agreement.
- Customer Warranties and Obligations
- Customer agrees to adhere to JWG's Acceptable Use Policy, a copy of which is attached hereto and marked as "Appendix A".
- The Acceptable Use Policy may be modified from time to time in JWG's sole discretion.
- Customer's continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute Customer's acceptance of the modified terms.
- Failure by Customer to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.
- Ownership of Intellectual Property
- Customer hereby grants to JWG a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or backup copies of the Content. Except for the rights expressly granted herein, JWG does not acquire any right, title or interest in or to the Content, all of which will remain solely with Customer.
- Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to JWG relating to the Services will be treated as being non-confidential and non-proprietary. JWG may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose. This provision will continue to apply to such material following termination of this agreement.
- JWG's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of JWG. Customer will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of JWG. JWG will maintain and control ownership of internet protocol numbers and addresses that may be assigned by JWG to Customer. JWG may, in its sole discretion, change or remove any and all such internet protocol numbers and addresses.
- JWG hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use the provided technology (including the products) solely for the purpose of accessing and using the Services. Customer may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from GL to Customer any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with JWG.
- Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
- Customer will not allow access to data for the application to third parties without the express written permission of JWG.
- JWG retains exclusive ownership of all computer code it writes or causes to be created.
- Customer gives JWG the right to use of their logo and company detail for promotion on GL or JWG marketing materials including their website. This provision will continue for 12 months following the termination of this agreement.
- Warranty and Disclaimer
- JWG shall not be liable for delays, interruptions, service failures and other problems inherent in use of the Internet and electronic communications or other systems outside the reasonable control of JWG.
- JWG shall not be responsible for any interruption to the Service as a consequence of a Force Majeure Event.
- The Service is provided “as is” and JWG and its partners or sub-contractors expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by Law.
- To the maximum extent permitted by Law, neither JWG nor any of its third-party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any products or any content therein or generated therewith, or that:
- the use of any Service will be secure, timely, uninterrupted or error-free;
- the Service will operate in combination with any other hardware, software, system, or data;
- the Service (or any products, services, information, or other material purchased or obtained by You through the Service) will meet Your business requirements or expectations;
- any stored Data will be accurate or reliable or that any stored Data will not be lost or corrupted;
- errors or defects will be corrected; or
- the Service (or any server(s) that make a hosted service available) are free of viruses or other harmful components.
- Limitation of Liability
- Except for claims available to you under consumer protection laws and to the extent JWG are able to under law, JWG excludes any and all liability to the Customer in relation to this Agreement with them, for any loss or damage including, but not limited to loss of profits, loss or corruption of data, loss of reputation, business or opportunity or for any type of special, direct, indirect, incidental or consequential loss or damage which the Customer may incur. This provision will apply claims made following termination of this agreement.
- JWG's total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Customer to JWG during the four (4) weeks period prior to the date the claim arises. This provision will apply claims made following termination of this agreement.
- Mediation - Arbitration
- Any dispute or difference whatsoever arising out of or in connection with this Agreement shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
- If the dispute or difference is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), either party may pursue its rights in the courts of New South Wales. Notwithstanding the existence of a dispute or difference each party shall continue to perform this Agreement.
- Legal Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable legal fees and costs.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
- Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.
- No Waiver
No waiver of any right under this Agreement will be deemed effective unless contained in writing signed by a duly authorised representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this Agreement.
- Governing law and jurisdiction
The law of New South Wales governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales or any competent Federal court exercising jurisdiction in New South Wales. The dispute must be determined in accordance with the law and practice applicable in the court.
- Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
- "Effective Date" means the date the services commences or changes, whichever is the later.
Acceptable Use Policy
- This Acceptable Use Policy applies to the use of GL products on the JWG servers and infrastructure.
- Customer acknowledges that the web servers being used are being shared with other users and are managed to maintain a high level of service for all clients.
- JWG may restrict or withdraw access to the Services for any reason it sees fit without reference to Customer
- All work, output and resultant data will reference the source and include a logo and link. The logo being a minimum of 5 times the normal paragraph text size.
- User credentials (logins and passwords) will be kept secret.
- User credentials will be for a specific person, not a group or shared
- Customer will not allow access to software developers or other third party developers or organisations.
- JWG requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately send an email detailing such violation to firstname.lastname@example.org.
- JWG may revise, amend or modify this Acceptable Use Policy at any time.