Terms of service.
This TERMS OF SERVICE and NON-DISCLOSURE AGREEMENT (the “Agreement”) is made as of, 1 April 2019 (the “Effective Date”) by and between SARAH ANDREWS and SARAH MARIE ANDREWS PTY LTD ACN 630 824 350 jointly and severally, of 906 Chapman Road, Glenfield Geraldton WA (“SA”) and any student or user who completes the registration process to attend a Hosting Masterclass course operated by SA (“Recipient”) through a website owned and operated by SA located at URL addresses www.thehostingmasterclass.com and www.sarahandrewsworkshops.comb
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING OR USING OR INSTALLING ANY PART OF THE COURSE MATERIALS RECIPIENT EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF THE USER/RECIPIENT DOES NOT AGREE TO ALL THE TERMS THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND THE TRANSACTION IS CANCELLED SO THAT RECIPIENT MAY NOT USE OR ACCESS OR INSTALL THE COURSE MATERIALS OR THE CONFIDENTIAL INFORMATION IN ANY WAY WHATSOEVER.
Purpose. SA has agreed and contracted to provide certain training and demonstration services known as the Hosting Masterclass to Recipient (the “Relationship”), in connection with which SA may disclose certain of her Confidential Information (as defined below) to Recipient. This Agreement is intended to allow SA to engage in such Relationship while protecting such Confidential Information (including Confidential Information disclosed to Recipient prior to the Effective Date) against unauthorized use or disclosure.
Definitions: Approved Purpose means the Recipient (i) to carry out discussions concerning, and the undertaking of, the Relationship; or (ii) the implementation of the Course Materials in the Recipients own hosting business. Confidential Information means all written or oral information, disclosed by SA to Recipient, that either forms part of the Course Materials (as defined below) or is disclosed to, provided to or otherwise delivered to the Recipient during the course of the Recipients participation or attendance at the Hosting Masterclass program or that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including but not limited to trade secrets, (including ideas and concepts not reduced to material form); know-how, expertise or ideas for products, services or programs intended to delivered or offered to the market by SA; specifications and technical information; product and market information relevant to the accommodation hosting sector.
2.3 Course Materials means any and all written and oral materials, communications developed by the SA relating to or otherwise connected with or forming part of the Hosting Masterclass program developed by SA to be delivered to students and course participants including without limitation documents, images, text, know-how, expertise and information;, ideas, designs, concepts, original compositions, printing templates and pro-formas, brochures, artwork, finished advertisements, radio and television commercials and all trade marks and trade names, brand names, trade symbols, logos, slogans or other indicia prepared, created or developed by SA
2.4 Hosting Masterclass Program means a complete set of training modules developed and delivered by Sarah Andrews (both online and offline) to hosters of short term accommodation worldwide covering each step involved in hosting including: branding, audience, pricing, house story, styling, press and photography, botanicals, house management, social media, marketing, websites, and experience, and incorporating Sarah Andrews’ unique experience, know-how and expertise in these areas.
Non-disclosure of Confidential Information.
The Recipient acknowledges that the Confidential Information:
has commercial value and is the property of SA; and
is proprietary to SA and is protected by intellectual property laws an treaties;
the Recipient’s access to the Confidential Information is licenced and not sold and that nothing in the Recipient’s access to the Course Materials or the Recipients participation in a Hosting Masterclass program gives the recipient any claim or entitlement to ownership of such intellectual property or Confidential Information or part thereof.
General Restrictions and Permitted Purpose:
Recipient agrees not to use any Confidential Information for their own use or for any purpose other than the Approved Purpose and the Recipient agrees not profit from the use of the Confidential Information, except in respect of this Approved Purpose. The Recipient will hold in strict confidence and not disclose to any third party any Confidential Information, except as approved in writing by SA. If Recipient is a company or other organization, Recipient will limit access to the Confidential Information to only those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein.
General Obligations of secrecy:
The Recipient must take all steps necessary to safeguard the confidentiality of the Confidential Information and Recipient agrees that it shall take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, SA’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that Recipient utilizes to protect its own Confidential Information, which shall be no less than reasonable care.
Recipient agrees to notify SA in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information which may come to Recipient’s attention.
Notwithstanding the above, Confidential Information shall not be deemed to include information which Recipient: (i) can prove was known to Recipient, without restriction, at the time of disclosure, as demonstrated by documentation in existence at the time of disclosure; or (ii) can prove is rightfully communicated to Recipient by persons not bound by confidentiality obligations with respect thereto; or (iii) which the Recipient is required, to the limited extent necessary in order to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body, provided, however, that Recipient shall provide prompt notice of such court order or requirement to SA to enable SA to seek a protective order or otherwise to lawfully prevent or restrict such disclosure
No Duplication and Return of Materials. Recipient agrees, except as otherwise expressly authorized by SA, not to make any copies or duplicates of SA’s Confidential Information. Any reproduction of SA’s Confidential Information will remain the property of SA and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by SA. Any documents and other tangible materials representing any SA Confidential Information and all copies thereof shall be promptly returned by Recipient, accompanied by all full or partial copies thereof, within ten (10) calendar days after (i) the Relationship has been rejected or terminated, or (ii) the request of SA.
No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright, trade secret or other intellectual property right of SA, nor shall this Agreement grant Recipient any rights in or to SA’s Confidential Information other than the limited right to review such Confidential Information during the course of the Hosting Masterclass. Recipient understands that nothing in this Agreement requires the disclosure of any Confidential Information by SA, and that SA has the right to determine, in its sole discretion, which of its Confidential Information, if any, to disclose to Recipient. Nothing herein shall be construed to require either Party to proceed with the Relationship or any transaction in connection with which the Confidential Information may be disclosed.
Term. This Agreement shall be effective as of the Effective Date and continue until this Agreement is terminated by SA or by mutual written agreement of the parties. The obligations of confidentiality under this Agreement survives the completion of the Approved Purpose and the termination, rescission or completion of any agreement in respect of the Approved Purpose, except as otherwise provided by such an agreement.
Feedback. To the extent that Recipient provides input, suggestions or other feedback to SA regarding the Course Materials or the Histing Masterclass program or SA’s Confidential Information (“Feedback”), Recipient will be deemed to have granted to SA a non-exclusive, non-transferable, worldwide, perpetual, irrevocable, royalty-free license to use, disclose, copy, license, modify, sublicense or otherwise distribute and exploit in any manner whatsoever the Feedback. Recipient acknowledges that it has no expectation of confidentiality with respect to any Feedback provided and represents and warrants that it has the right to provide such Feedback.
Recipient Information. SA does not wish to receive any confidential information from Recipient, and SA assumes no obligation, either express or implied, with respect to any information disclosed to SA by Recipient during the course of the Hosting Masterclass program.
Recipient representation. the Recipient represents and warrants to SA that (a) Recipient is over the age of eighteen years and has the power and authority to enter into and to perform the Recipients obligations under this Agreement; (b) Recipient is the authorised signatory of the credit or charge card provided to SA to pay the fees for the Hosting Masterclass program; (c) Recipient shall comply with all terms and conditions of this Agreement; and (d) Recipient has provided and will provide accurate and complete registration information, including but not limited to Recipients legal name, address and telephone number.
Fees and Cancellation: Fees: Recipient shall pay SA the fees for Recipients participation in or attendance at SA’s Hosting Masterclass program and use of the Course Materials as well as all currency conversion charge, value added tax or the like, and any penalty fee in the event of any refusal of credit card issuer to pay any amount to SA. In the event Recipient fails to pay any amount in advance, SA may immediately suspend or terminate Recipients access to the Hosting Masterclass program or the Relationship. Cancellation: Recipient may cancel its attendance at a training class provided by SA by contacting SA at email address email@example.com. SA, however Recipient agrees they are subject to SA’s Refund and Cancellation Policy (make link to policy on website here). This means that no refund shall be given for cancellations however SA may, but in her sole discretion, reschedule Recipient to the next training class with available space a in accordance with SA’s Refunds and Cancellation Policy. SA reserves the right to cancel or reschedule a training class, without liability, up to ten (10) days before such class is scheduled to begin in SA’s sole discretion. If the class is cancelled or rescheduled, SA shall notify Recipient at the contact information provided by Recipient. SA shall, in no event, be responsible for Recipient’s travel or other expenses incurred as a result of such cancellation.
Remedies. Recipient agrees that its obligations set forth in this Agreement are necessary and reasonable in order to protect SA and SA’s business. Recipient expressly agrees that, due to the unique nature of SA’s Confidential Information, monetary damages would be inadequate to compensate SA for any breach by Recipient of its covenants and agreements set forth in this Agreement. Accordingly, Recipient agrees and acknowledges that any such violation or threatened violation shall cause irreparable injury to SA and that, in addition to any other remedies that may be available, in law, in equity or otherwise, SA shall be entitled (i) to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Recipient, without the necessity of posting bond or of proving actual damages; and (ii) to be indemnified by Recipient from any loss or harm, including but not limited to attorney’s fees, arising out of or in connection with any breach or enforcement of Recipient’s obligations under this Agreement or the unauthorized use or disclosure of any Confidential Information.
Liability and Indemnity. Liability: Under no circumstances shall SA be liable to Recipient or any other person for any indirect, incidental, consequential, special or punitive damages for any matter arising from or relating to this Agreement or the Relationship or the Course Materials or the Recipient’s participation in the Hosting Masterclass program, whether such liability is asserted on the basis of contract, tort or otherwise. In no event shall SA’s total liability for direct damages exceed the total fees paid or payable by Recipient to SA for the Hosting Masterclass program. (Some jurisdictions prohibit the exclusion or limitation of incidental or consequential damages, thus this limitation of liability may not apply to a specific Recipient). Indemnity: Recipient agrees to indemnify, hold harmless and defend SA her employees and agents (if any) from and against any action, cause, claim, damage, debt or liability, including legal fees, asserted by any person, arising out of or relating to: (a) this Agreement: (b) Recipient’s participation in the Hosting Masterclass program; or (c) Recipient’s use or implementation of the Course Materials.
Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of SA. Recipient may not assign any of its rights hereunder, nor delegate any of its duties hereunder, without the prior written consent of SA, and Recipient acknowledges and agrees that, absent such prior written consent, any attempted assignment or delegation hereunder shall be null, void and of no effect. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
14.1 Severability. If for any reason any provision of this Agreement is adjudicated to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
14.2 Independent Contractors. SA and Recipient are independent contractors. Nothing contained in this Agreement shall be construed to allow either Party to make commitments or incur any charges or expenses for, or in the name of, the other Party.
14.3 Governing Law - Venue. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of New South Wales, without giving effect to principles of conflicts of law. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the non-exclusive jurisdiction of the state courts of New South Wales and federal courts located in Australia
14.4 Amendment and Waiver. SA shall have the right at any time to add or modify the terms of this Agreement, simply by delivering such revised terms to Recipient by email at address to SA by Recipient. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the waiving party.
14.5 Entire Agreement. This Agreement constitutes the entire agreement between SA and Recipient with respect to the subject matter hereof and supersedes any prior agreement, arrangement or commitment relating thereto.
SMA PTY LTD
E-LEARNING COURSE END-USER LICENCE AGREEMENT AND PRIVACY STATEMENT
A) END USER LICENCE AGREEMENT
This End User License Agreement (EULA) is a legal agreement between you and Sarah Marie Andrews Pty Ltd ACN 630 824 350 (SMA), and governs The Hosting Masterclass e-Learning Course Product (Course) made available to you by SMA on this site (or through workshops, e-learning course materials and paper-based products), which may include courses and courseware, libraries, clinics, videos software, code, scripts, schemas, templates, slides, instructions, associated media, Internet-based services, support services, and related printed or electronic documentation (Products). By installing and/or using the Products, you agree to the terms of this EULA (Terms). Please read the Terms carefully and in full prior to completing the installation process and using the Product. If you do not agree with the Terms please do not install or use the Product or Products.
General Use Rights
payment of the course fee for the Product specified by SMA at the point of purchasing the licence for the Product (Course Licence Fee); or
in the event that the Product is not provided for a Course Licence Fee, then upon downloading, installing or using a Product (Download) (whichever comes first),
you are granted a revocable, non-transferable, non- exclusive and limited licence (Licence) to use the Products for your personal training use only and strictly in accordance with these Terms, for the term of the Licence (Licence Term) commencing on the date that you purchase the Licence for the Product or Download the Product, whichever is applicable.
install and use the Product on a single computer; or
install and store the Product on a storage device, such as a network server, used only to install the Product on your other computers over an internal network, provided you have a license for each separate computer on which the Product is installed and run.
You must NOT:
share the Licence, or the contents of the Product, with others;
install or use the Product concurrently on more than one computer or other electronic devices without the separate relevant licences; or
access or use the Product via a server or network storage device, except solely for the purposes of installing the Product on a computer in accordance with clause 1.2(a).
You agree that SMA may, upon reasonable notice to you, audit your use of the Product for compliance with these Terms. In the event that such audit reveals any use of the Product by you other than in full compliance with these Terms, you shall reimburse SMA for all reasonable expenses related to such audit in addition to any other liabilities SMA incurs as a result of such non-compliance.
Prior to acquiring a Licence to the Product, you must ensure that you have the requisite computer hardware and software requirements and configuration that is required to successfully run and install the Product. You will not be entitled to a refund of the Course Licence Fee and to the extent permitted by law, SMA will not be responsible or liable for any claim, loss or expense that you may suffer as a result of not being able to install and/or run the Course or the Product.
You must NOT:
make or distribute copies of the Product, or electronically transfer the Product from one computer to another or over a network;
alter, digitize, merge, modify, adapt or translate the Product, or decompile, reverse engineer, disassemble, or otherwise reduce the Product to a human- perceivable form;
sell, transfer, rent, lease, licence or sub-licence the Product;
broadcast, transmit or otherwise display in a public forum or any venue not restricted to you, the Product or any part of the Product;
post the Product or part of the Product on any website;
assign and/or novate any rights and obligations under these Terms;
modify the Product or create derivative works based upon the Product;
use the Product for commercial purposes; or
use the Product to develop any product having the same primary function as the Product.
You acknowledge and agree that (i) the Product may include technical inaccuracies or errors, and (ii) the party permitted to make changes to the Product (whether SMA or a supplier of the Product nominated by SMA (Supplier)) may make improvements or other changes in the Products at any time.
SMA makes no warranty as to the accuracy or completeness of any information in contained in the Course.
You acknowledge that any information in the Hosting Masterclass e-Learning Course is intended to be a guide only. You should not act solely on the basis of the information contained in the Course as parts may be generalised and the application of exercises, examples and case studies may vary from place to place and situation and may apply differently to different people and circumstances.
If the copy of the Products is an upgrade from an earlier version of the Product, you must possess a valid full License to a copy of an earlier version of the Product used to upgrade to this upgrade copy in order to install and/or use this upgrade copy, and the upgrade copy is provided to you on a License exchange basis. You agree by your installation and use of such copy of the Product to voluntarily terminate your earlier agreement and uninstall, destroy andcease using the earlier version of the Product and must not transfer it to another person or entity.
SMA retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Course and/or the Product (as an independent work and as an underlying work serving as a basis for any application the Customer may develop), and all copies thereof. All rights not specifically granted in these Terms are reserved by SMA.
Links to This Party Sites
You may link to third party sites through the use of the Product. The third party sites are not under the control of SMA, and SMA is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites. SMA is not responsible for webcasting or any other form of transmission received from any third party sites. SMA provides these links (if any) to third party sites to you only as a convenience, and the inclusion of any link does not imply an endorsement by SMA of the third party site.
Additional Licensed Content/Services
These Terms apply to any updates, supplements, add-on components, or Internet-based services components, of the Product that SMA may provide to you or make available to you after the date you obtain your initial copy of the Course and/or the Product, unless SMA provides other terms with the update, supplement, add-on component, or Internet-based services component. SMA reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Product.
You must not remove or modify any copyright notice on the Product or Course nor register any copyright based on the Product or the Course or any part thereof.
You must not use any of SMA’s trademark(s) (whether statutory or common law (if any) nor register in any country any such trademark, or any mark confusingly similar to the SMA’s trademark, whether alone or in combination with.
You must use your best endeavours to ensure that the Product is protected at all time from access, use or misuse, damage or destruction by any person not authorised to use the Product pursuant to these Terms.
Without prejudice to any other rights, SMA may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Product and/or Course and all of its component parts and you will not be entitled to a refund of the Course License Fee already paid by you.
The following provisions of this EULA will survive any termination: All definitions and clauses 7, 10, 11, 12, 13 and this clause 9.2.
Warranties and Exclusions
Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions and impose obligations on SMA and its Supplier(s) (“Implied Terms”). If the Implied Terms apply, to the extent permitted by law, SMA’s liability will be limited at its option to the resupply, repair or replacement of the Product of the Course (or part thereof as applicable) or the cost of such resupply, repair or replacement. Subject to the Implied Terms all representations, guarantees, conditions and warranties of any nature are expressly excluded. Nothing in this clause excludes, restricts or modifies your rights under an Implied Term.
Exclusion of Incidental, Consequential and Certain Other Damages
Subject to any Implied Term SMA will not be liable to you for any indirect or consequential loss, loss of profit (whether based on contact, tort (including negligence), statute or any other legal theory) or loss of revenue arising in connection with these Terms, the Course, the Product, any software for the Product or any support services for the Product or the Course.
Limitation of Liability and Remedy
12.1.Subject to any Implied Term and to the full extent permitted by any applicable law, the cumulative total liability of SMA and/or any of its Suppliers under these Terms (regardless of the basis of the claim or action, including negligence and gross negligence) will not exceed the greater of two (2) times the Course License Fee for the Product paid to SMA or the amount of AUD$100.00
13.1.You will indemnify SMA, its directors, employees, contractors and agents from and against all damages, losses, claims and expenses:
in the event that your act or omission causes or contributes to SMA breaching its obligations with any of SMA’s Suppliers involved in the delivery of the Product of the Course;
as a result of your use of the Product and/or the Course, including but not limited to, any modification by you of the Product(s) (whether done with SMA’s consent or otherwise) which causes the Product to infringe the intellectual property rights of a third party (including any Supplier(s)).
Variation of the Terms
14.1.SMA reserves the right to amend these Terms from time to time without notice to you and you will be subject to the Terms in force at the time you purchase the Licence for the Products or Download the Course whichever is applicable.
15.1.The failure, delay, relaxation or indulgence on the part of a party in exercising, in part or whole, any power, right or remedy conferred upon that party by these Terms shall not operate as a waiver of that power, right or remedy.
15.2.If any provision of these Terms is invalid or not enforceable by a court of competent jurisdiction, the relevant Term is to be read down and shall otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms.
15.3.These Terms are governed by and are to be construed in accordance with the laws in force in New South Wales, Australia. Each party irrevocably and unconditionally submits to the non- exclusive jurisdiction of the courts of New South Wales (or the applicable Federal Courts of Australia as the case may be) and waives any objection that it may have that proceedings have been brought in an inconvenient forum.
B) PRIVACY STATEMENT
SMA is committed to protecting your privacy and the confidentiality and the security of personal information provided by you. The personal information you provide is necessary to process your registration form which may include updating your record and profile information. We may use your personal information to contact you about Course development and associated events, provide you with the latest news, to conduct analysis or market research to identify the ongoing needs of registrants, and to generally provide you with information on services and benefits. Personal information provided by you may be disclosed to external organisations that we engage for certain business functions such as our mailing houses, printers, technology service providers and marketing and communications agencies. Your personal information may be transferred or stored outside the country where the information was collected for the purposes stated above.