TERMS OF USE
1. Agreement
1.1 These Terms constitute a binding contact between You and Whipbird.
1.2 These Terms incorporate all policies implemented by Whipbird from time to time (and as amended by Whipbird from time to time) and which are available on the Site and the Terms which together constitute the entire agreement between You and Whipbird.
1.3 The Whipbird Privacy Policy (available at www.whipbirdcomms-education.thinkific.com/pages/privacy) is incorporated into the Agreement.
1.4 The Site and the Services are offered to You conditional on your acceptance of the Terms.
1.5 Your continued use of the Site and/or the Services will signify your acceptance of the Terms.
1.6 Each time You access the Site or use the Services You are agreeing to be bound by the Terms.
1.7 If You do not agree to any of the Terms You should immediately cease to access or use the Site and/or the Services.
1.8 Whipbird may close, suspend or limit access to your Account or the Services provided by Whipbird if you carry out activities which contravene the Terms.
2. Amendments
2.1 Whipbird may amend the Terms from time to time.
2.2 Whipbird will notify You of any changes to the Terms by posting a notice of changes on the Site.
2.3 For the purposes of notifying You of any amendments to the Terms You provide permission to Whipbird to email You.
2.4 Whipbird may (but shall not be obliged to) notify You of amendments to the Terms by email.
2.5 Amendments to the Terms are effective on the earlier of:
2.5.1 Your acknowledgement of the amendments; or
2.5.2 Your continued access to and use of the Site and/or the Services after Whipbird posts notice of such amendments.
2.6 Continued access to the Site and/or the Services following notice of any changes to the Terms will indicate your acknowledgement of such changes and Your satisfaction with the Site and/or the Services as modified.
2.7 It is your responsibility to check the Site from time to time to view any amendments to the Terms.
2.8 If You do not agree to any amendment You must cease access to and use of the Site and/or the Services. This will be Your sole recourse against Whipbird.
3. Client Eligibility
By using the Site You acknowledge represent and agree that:
3.1 You are at least eighteen (18) years old;
3.2 You have the right authority and capacity to enter into this Agreement;
3.3 You will abide by:
3.3.1 All the Terms;
3.3.2 All of the policies of Whipbird posted on the Site from time to time;
3.3.3 Any relevant industry code or code of behaviour that applies to You if You are a member of any professional association.
3.4 You are not the subject of any bankruptcy proceedings or subject to any insolvency administration.
3.5 You may browse the Site in accord with the Terms but You may not have access to certain Services unless You subscribe to and pay for the Services.
4. Becoming a Client
4.1 If You wish to use the Services available on the Site You are required to set up an Account.
4.2 When setting up an Account You will be required to provide specific information and select Account Credentials.
4.3 You acknowledge represent and agree that all information You provide to Whipbird to establish an Account is true, accurate, current and complete and You agree to maintain and promptly update such information to keep the information true accurate current and complete.
4.4 You must not transfer or share your Account Credentials with any third party.
4.5 You are solely responsible for maintaining the confidentiality of your Account Credentials.
4.6 You acknowledge, represent and agree that Whipbird will rely on Account Credentials to know whether any User accessing the Site and using the Services is authorised to do so.
4.7 If someone accesses the Site and/or the Services using Your Account Credentials, Whipbird will rely on the Account Credentials and assume that it is You who is accessing the Site and/or the Services.
4.8 You are solely responsible for:
4.8.1 Any and all use of Your Account Credentials and Your Account;
4.8.2 All activities that occur under or in connection with Your Account Credentials or Your Account; and
4.8.3 Any act or omission of any User who may access the Site and/or the Services using Your Account Credentials.
4.9 If You create an Account on behalf of a third party, You acknowledge, represent and agree that You have the authority to represent such third party and bind the third party to the Terms.
4.10 Your account will remain active unless/until you request its closure. However You will only have access to the free content available from Your Account for a period of one year without paying a subscription fee to access the subscription only products accessed through the Account.
5.0 Role of Whipbird
5.1 The Site is a platform designed to connect Whipbird with Clients wishing to utilise the Services made available by Whipbird.
5.2 You shall be solely responsible to decide whether to subscribe to and pay for any Services made available by Whipbird.
5.3 You understand and agree that Whipbird:
5.3.1 Has no control over and is not responsible for ensuring that any User fully utilises or completes any Services made available by Whipbird;
5.3.2 Makes no representation or warranty regarding the outcomes achieved by any User participating in or utilising any Services made available by Whipbird;
5.3.3 Is not responsible for the accuracy or reliability of any information provided by any User engaged in or utilising any Services made available by Whipbird.
6. Content of Site
6.1 When You access the Site and/or the Services you obtain access to Content.
6.2 You grant Whipbird a non-exclusive worldwide royalty free perpetual licence that is capable of being sub-licenced and/or transferred in respect to all of your copyright and other intellectual property rights related to the Content that You post or contribute to the Site or provide in relation to the Services.
6.3 You acknowledge represent and agree with Whipbird that:
6.3.1 Whipbird is only acting as the provider of the Services, which may be utilised by a User;
6.3.2 Whipbird makes no express or implied warranty as to the actual distribution or publication of Content;
6.3.3 Whipbird has the right (but is not obliged) to take any action deemed appropriate with respect to Content if it is believed that such Content may:
6.3.3.1 Create liability for Whipbird;
6.3.3.2 Harm the business operation or reputation of Whipbird; or
6.3.3.3 Cause Whipbird to lose the services of its suppliers or Clients or Customers or Users.
6.4 Evaluation of Content by Whipbird will be based on guidelines adopted by Whipbird from time to time that encompass objectively quantifiable and aesthetic aspects of Content.
7. Member Verification
7.1 You are responsible to make your own decisions regarding the User that may benefit from the Services provided by Whipbird through the Site.
7.2 Whipbird is not required to verify information made available by You or any other User on or through the Site. You are solely responsible for sighting original documents and/or information to verify any representation that any User utilising your account credential may make using the Site or in other communications.
7.3 You understand and agree that Whipbird has the right (but is not obliged) to:
7.3.1 Independently verify any statement made by any Client or Customer or User on the Site; and
7.3.2 Verify that any Client meets any of the eligibility criteria established by Whipbird from time to time.
7.4 You represent acknowledge and agree that Whipbird does not have control over or assume any responsibility for the quality, accuracy or reliability of any information provided by any User utilising your Account Credentials relating to or in any way connected with the Services and/or other products provided by Whipbird or any products or services of third parties promoted on the Site.
7.5 Whipbird may make use of any third party verification services available to verify any information relating to Clients or Customers or Users. In the event that Whipbird chooses to verify any representation warranty statement or any information provided by any User through the Site, You authorise Whipbird to verify such information and use or disclose any information in order to accomplish such verification.
8. Contract for Services
8.1 Whipbird is not employed by Clients. It only provides the Services for the benefit and education of Users.
8.2 By using the Site, You agree that You will observe and comply with all policies and procedures adopted by Whipbird from time to time concerning the conduct of and participation in any Services made available by Whipbird through the Site.
9. Relationship Between the Parties
9.1 You must comply with all laws relating to the provision of the Services made available by Whipbird through the Site and any assessment evaluation of the outcomes of those Services.
9.2 You must act in good faith towards Whipbird in utilising the Services and not do anything contrary to the legitimate commercial interests of Whipbird.
9.3 Whipbird shall not give any Client or any Customer any direction about the manner in which a User interacts with and/or utilises the Services provided by Whipbird through the Site.
9.4 Whipbird shall not be liable for any injury loss or damage suffered by any Client or any Customer or any User arising from any participation in or utilisation of the Services made available by Whipbird through the Site.
10. Insurance
10.1 Whipbird shall not be responsible for arranging any insurance cover or indemnifying any Client or any Customer or any User in any way relating to participation in or utilisation of the Services made available by Whipbird through the Site.
11. Intellectual Property
11.1 You acknowledge represent and agree with Whipbird that the Terms and the Technology are:
11.1.1 The property of or subject to copyright and/or license to Whipbird under Australian and International Copyright Laws;
11.1.2 Subject to other intellectual property and proprietary rights and laws; and
11.1.3 Owned by Whipbird or its licensors.
11.2 The Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written consent of Whipbird and with the prior written permission of any applicable licensors.
11.3 You must abide by all copyright notices information or restrictions contained in or attached to any of the Technology and the Site.
11.4 Nothing in this Agreement grants you any right to receive delivery of a copy of the Technology or to obtain access to the Technology except as generally and ordinarily permitted through the Site and in accord with the Terms.
11.5 Nothing in the Agreement will be deemed to grant by implication or otherwise a licence to the Technology.
11.6 Some of the Marks constitute trademarks, trade names, service marks and/or registered designs of Whipbird or other entities.
11.7 You are not authorised to use any of the Marks.
11.8 Ownership of all Marks and the goodwill associated with the Marks remains with Whipbird or those other entities who own the Marks.
11.9 Any use of third party software provided in connection with the Site or the Services will be governed by relevant third party licences and not by the Agreement.
12. Feedback
12.1 By using the Site You acknowledge that You transfer to Whipbird copyright in any Feedback and reviews You leave whether as a Client or a Customer or a User, consisting of comments recommendations and/or any multidimensional rating.
12.2 You acknowledge that any Feedback belongs to Whipbird notwithstanding that You permit Whipbird to use it on the Site.
12.3 You may not use the Feedback or deal with the Feedback in any way inconsistent with the policies of Whipbird as posted on the Site from time to time without the prior written consent of Whipbird.
12.4 You may not do anything that may undermine the integrity of the Feedback system developed by Whipbird.
12.5 Whipbird is entitled to suspend or terminate your right to use the Site if in the sole and absolute discretion of Whipbird it is concerned by any Feedback about You or your Feedback rating is considered to be problematic to Whipbird.
12.6 Any ratings established or recorded by Whipbird (whether on the Site or otherwise) may not be used for any purpose other than facilitating participation in or utilisation of the Services provided by Whipbird through the Site.
12.7 You may not use your Feedback including (but not limited to) marketing or exporting your Feedback or quality rating or Feedback comments in any real or virtual venue other than the Site unless You obtain the prior written consent of Whipbird.
12.8 You represent acknowledge and agree that all Feedback You provide is true and correct and is not misleading or deceptive in any way.
13. Offensive Content
13.1 Although Whipbird strives to enforce the rules set out in the Terms with all Clients and Customers and Users, You may be exposed through the Site or the Services to Content that violates the policies of Whipbird or may be otherwise offensive.
13.2 You access the Site and the Services at your own risk.
13.3 Whipbird may (but is not obliged) to delete Accounts and/or remove Content from the Site if Whipbird determines or suspects that those Accounts or Content violate the Terms.
13.4 Whipbird takes not responsibility for your exposure to Content on the Site or through the Services whether it violates the Terms or not.
14. Client Conduct and Confidentiality
14.1 It is the goal of Whipbird to make access to the Site and the Services a good experience for all Users and Clients and Customers.
14.2 Whipbird will not be responsible for any correspondence or other communication between You and any other User in relation to or for any purpose relating to participation in or utilisation of the Services provided by Whipbird.
14.3 If You receive the personal information of any other Client or Customer or User through the use of the Services, You may use the information solely as necessary to participate in or utilise the Services available through the Site.
14.4 You must not use the personal information of any other Client or Customer or User for any other purposes.
14.5 You agree not to and represent, acknowledge and agree that You will not reproduce, duplicate, copy, sell, re-sell or exploit any portion of the Site or the Services or use the Site or Services or access the Site or the Services for any purpose other than for which the Site or the Services are being provided to You.
14.6 When using the Site or the Services, You represent acknowledge and agree not to do any of the following:
14.6.1 Contact any Client or Customer or User for any purpose other than as set out in the Terms;
14.6.2 Harass, intimidate or otherwise engage in illegal or offensive behaviour with respect to a Client or Customer or User;
14.6.3 Conduct or promote any illegal activities while using the Site or the Services;
14.6.4 Upload, distribute or print anything that may be harmful to minors;
14.6.5 Attempt to reverse engineer or jeopardise the correct functioning of the Site or otherwise attempt to derive the source code of the software that enables or underlies the Site or the Technology;
14.6.6 Attempt to gain access to secured portions of the Site or the Services to which You do not possess access rights;
14.6.7 Upload or transmit to the Site any form of virus, worm, trojan horse, or other malicious code;
14.6.8 Use the Site or the Services to generate unsolicited email advertisements or spam, allow, enable or otherwise support the transmission of mass unsolicited commercial advertising or solicitations via email (spam);
14.6.9 Use the Site or the Services to stalk harass or harm another individual;
14.6.10 Use any high volume automatic electronic or manual process to access, search or harvest information from the Site or the Services including (but not limited to) robots, spiders or scripts;
14.6.11 Interfere in any way with the proper functioning of the Site or the Services or interfere with or disrupt any service or networks connected to the Site or the Services or disobey any requirements procedures policies or regulations of networks connected to the Site or the Services;
14.6.12 Use any robot, spider other automatic device or manual process to extract, "screen scrape", monitor, "mine" or copy any static or dynamic webpage on the Site or any Content contained on any such webpage for commercial use without the prior written consent of Whipbird;
14.6.13 Impersonate any person or entity or otherwise misrepresent Your affiliation with a person or identity;
14.6.14 Mirror or frame the Site or any Content place pop-up windows over its pages or otherwise affect the display of its pages.
15. Payments
15.1 Limited access to the Site is available free of charge to Users.
15.2 By becoming a Client or a Customer, You agree to pay Whipbird:
15.2.1 The subscription fee for any online course offered by Whipbird through the Site;
15.2.2 The applicable fee for any Service offered by Whipbird; and
15.2.3 Any other costs reasonably incurred by Whipbird in enforcing its rights under the Agreement;
15.3 Whipbird reserves the right at any time to modify its fees and/or billing methods as notified on the Site.
15.4 In exchange for provision of the Services by Whipbird, the Customer authorises Whipbird to deduct from the nominated bank account or credit card of the Customer any fees payable by the Customer to Whipbird for provision of the Services.
15.5 In exchange for access to the Site and participating in or utilising the Services through the Site, the Client authorises Whipbird to deduct from the nominated bank account or credit card of the Client any moneys payable by the Client to Whipbird pursuant to the Agreement.
15.6 If the nominated bank account or credit card is cancelled, suspended or is otherwise not usable, You must immediately provide Whipbird with details for an alternative nominated bank account or nominated credit card which can be used to meet your obligations under the Agreement.
15.7 All payments relating to Services provided by Whipbird to the Customer must be made through the payment channels provided or specified by Whipbird and in accord with the Agreement.
16. Bank Account Details
16.1 Each Customer is solely responsible for the accuracy of the nominated bank account or nominated credit card details that are provided to Whipbird including the bank account number and bank BSB number or the credit card details.
16.2 Whipbird disclaims all liability related to errors in fund deposits due to inaccurate or incomplete bank details or credit card details being submitted by Clients and/or Customers and/or Users.
17. Fees
17.1 Whipbird reserves the right to correct any errors in the payment of fees by a Client or Customer or User to Whipbird even if it has already requested and/or received payment.
18. Payment Processing
18.1 Whipbird may use third party payment processing services to process bank account information and payments.
18.2 Whipbird expressly disclaims any liability for any claim or damage related to the use by Whipbird of third party payment processing services and such transfers including (but not limited to) any damage that may result should any such information be released to any third party.
19. Promotional Offers
19.1 Whipbird may run promotional offers from time to time on the Site.
19.2 The terms of any such promotion will be posted on the Site.
19.3 Unless otherwise indicated Whipbird may establish and modify the terms of such offer and end such offer at any time at its sole discretion.
19.4 Whipbird may at its sole discretion offer a free trial period to any new User assessed on a case-by-case basis. The terms of the free trial period will be established on a case-by-case basis by Whipbird including (but not limited to) the duration of the trial period and whether any payment is required in advance.
20. Cancellation
20.1 If You have made any payment to Whipbird, You may cancel the subscription by notice to Whipbird at any time but no monies will be refunded to You for any such subscription paid by You. Whipbird may at its absolute discretion refund any monies paid by any User.
21. Third Party Content
21.1 The Content from any third party advertisers or other third parties may be made available to You through the Site and/or the Services. Because the Content is not controlled by Whipbird, You agree that Whipbird will not be responsible for any such Content.
21.2 Whipbird does not make any guarantee or representation about the accuracy, currency, suitability or quality of the information in such Content and Whipbird assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful Content made available by third party advertisers or other third parties or violation of any third party rights related to such Content.
21.3 The Site and the Services may contain links to websites not operated by Whipbird. Whipbird will not be responsible for the content products materials or practices of such websites.
21.4 You understand that by using the Site and/or the Services You may be exposed to third party websites that You may find offensive indecent or otherwise objectionable.
21.5 Whipbird makes no warranty, representation, endorsement or guarantee regarding and accepts no responsibility for the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or the Services.
21.6 Whipbird provides these links for your convenience only and Whipbird does not control such websites or hyperlinks.
21.7 The inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators.
21.8 It is your responsibility to review the privacy policies and terms of use of any other website You visit.
21.9 You agree that in no event will Whipbird be liable to You in connection with any websites content, products, materials or practices of any third party.
22. Suspension and Termination
22.1 You agree that Whipbird may at any time and in its absolute discretion with or without notice to You and without any entitlement to a refund of any moneys paid:
22.1.1 Modify or discontinue the Site or the Services; and/or
22.1.2 Immediately modify, suspend or terminate your access or use of the Site and/or the Services.
22.2 You agree that Whipbird will not be liable to You or to any other party for any:
22.2.1 Suspension or termination of your access to the Site and/or the Services or deletion of your Account; or
22.2.2 Modification or discontinuation of the Site and/or the Services.
22.3 Suspension or termination of your Account will in no way modify, change or void any payment obligations You may have incurred in favour of Whipbird.
22.4 Whipbird may without notice and without cause remove the invitation to treat with a Client or Customer from the Site.
22.5 Continued access to the Site and/or the Services following notice of any such changes will indicate You acknowledge such changes and your satisfaction with the Site and/or the Services as modified.
23. No Warranty
23.1 You agree that your use of the Site and/or the Services will be at your sole risk.
23.2 The Site and all Content on the Site is provided on an "as is" and "as available" basis and to the extent permitted by law without warranties of any kind either express or implied.
23.3 To the extent permitted by law Whipbird specifically disclaims all warranties and representations of any kind whether expressed or implied including (but not limited to) any warranties in respect of the following:
23.3.1 Title quality merchantability fitness for a particular use or purpose non-infringement operability condition quiet enjoyment value accuracy of data and system integrity;
23.3.2 That the Site and/or the Services will meet your requirements;
23.3.3 That the Site will be accurate reliable uninterrupted secure or error free;
23.3.4 That the Site or the server that makes it available will be uninterrupted timely secure free of viruses errors or other harmful components;
23.3.5 As to the results that may be obtained from the use of the Site or the Services; and
23.3.6 That defects in the Site or Services will be corrected in a timely manner or at all.
23.4 To the maximum extent permitted by law Whipbird expressly disclaims and You expressly release Whipbird from any liability of any kind for any damages suits claims and/or controversies that may arise from and/or in any way relate to any act or omission of any Client Customer or User on or off the Site including (but not limited to) the provision of any Services by any Client Customer or User to any other Client Customer or User.
24. Liability
24.1 You are liable for all acts or omissions in the receipt of the Services.
24.2 If You are a consumer pursuant to the Australian Consumer Law nothing in this Agreement shall restrict limit or modify the rights or remedies You have against Whipbird for failure of a statutory guarantee under the Australian Consumer Law.
24.3 Nothing in this Agreement shall be interpreted as excluding restricting or modifying or having the effect of excluding restricting or modifying the application of any State or Federal Legislation applicable to the sale of goods or supply of services which cannot be excluded restricted or modified.
24.4 You understand and agree that:
24.4.1 Any material or information downloaded or otherwise obtained through the use of the Site or the Services is done at your own discretion and risk;
24.4.2 You will be solely responsible for any damage to your computer or loss of data that results from the download of such material and/or information.
24.5 To the extent permitted by the Australia Consumer Law and any other applicable legislation Whipbird expressly limits its liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies at the sole discretion of Whipbird:
24.5.1 In the case of goods any one or more of the following:
24.5.1.1 The replacement of the goods or the supply of equivalent goods;
24.5.1.2 The repair of the goods;
24.5.1.3 The payment of the cost of replacing the goods or of acquiring equivalent goods; or
24.5.1.4 The payment of the cost of having the goods repaired;
24.5.2 In the case of services:
24.5.2.1 The supply of the services again; or
24.5.2.2 The payment of the cost of having the services supplied again.
24.6 In the event that the limitations in the preceding sub-clause are restricted the liability of Whipbird will be limited as far as legally possible under the Australian Consumer Law or other applicable legislation.
24.7 To the extent permitted by law Whipbird will not be liable nor will any of its Affiliates be liable to You or any third party whether in contract warranty tort statute or otherwise for:
24.7.1 Any direct indirect special incidental consequential or exemplary damages that may be incurred by You;
24.7.2 Any loss of income revenue goodwill business profits data (whether direct or indirect) that may be incurred by You; or
24.7.3 Any claim damage or loss which may be incurred by You;
arising from out of or related to:
24.7.4 Your use of or access to or the inability to use or to access the Site or the Services;
24.7.5 Your transactions involving the Site;
24.7.6 Any act or omission of any User;
24.7.7 Any misstatement and/or mis-representation by any third party or contained in any Content;
24.7.8 The accuracy timeliness or completeness of any background check provided to You in connection with the Site and/or the Services;
24.7.9 The use of information provided by any third party verification service;
24.7.10 The transactions between You and any third party merchants or service providers;
24.7.11 Any information appearing on third party merchant or service provider websites or any other website linked to the Site.
24.8 The limitations on the liability of Whipbird to You shall apply whether or not Whipbird or any of its Affiliates have been advised of knew of or should have known of the possibility of such loss or damage arising.
24.9 You acknowledge and agree that Whipbird is only willing to provide access to the Site and provide the Services if you agree to certain limitations of its liability to You and to third parties.
24.10 If You are dissatisfied with any portion of the Site or the Services your sole and exclusive remedy is to discontinue use of the Site and/or the Services.
24.11 Whipbird and its Affiliates may plead the Terms as a bar to any claim action proceeding or suit brought by You against Whipbird or any of its Affiliates for any matter arising out of any transaction or otherwise in respect of the Agreement.
25. Indemnity
25.1 You indemnify Whipbird and its Affiliates against any third party claim liability demand proceeding loss cost expense fee (including reasonable legal fees and court costs) and direct or indirect or consequential damage of every kind and nature known and unknown made by any third party due to or arising out of:
25.1.1 Your breach of the Agreement;
25.1.2 Your violation of any law or the rights of any third party;
25.1.3 Any of your Content and/or information that You transmit through the Site or the Services;
25.1.4 Your use of the Site or the Services;
25.1.5 Any virus, trojan horse, worm, time bomb, cancelbots or other similar harmful or deleterious programming routine input by You into the Site and/or the Services; or
25.1.6 Any dispute that may arise between Users or between a Client and a User in relation to the Services.
26. Dispute Resolution
26.1 Any dispute related to the Services received by Whipbird shall be resolved directly between Whipbird and the Client.
26.2 Whipbird reserves the right (but shall not be obliged) to monitor or take any appropriate action regarding any dispute that You may have with any other Users or Clients or Customers.
26.3 If a dispute arises between You and Whipbird the goal will be to address your concerns and if Whipbird is unable to do so to your satisfaction to provide You with a means of resolving the dispute quickly.
26.4 For any claim Whipbird may elect to resolve the dispute in a cost effective manner through binding non-appearance based arbitration.
26.5 If Whipbird elects arbitration such arbitration will be initiated through an established alternative dispute resolution provider which is to be selected by You from a panel of alternative dispute resolution providers that Whipbird will provide to You.
26.6 The alternative dispute resolution provider and the parties to the dispute must comply with the following rules:
26.6.1 The arbitration shall be conducted by telephone online or be solely based on written submissions the specific manner being chosen by the party initiating the arbitration;
26.6.2 The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
26.7 Any judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
26.8 Any claim You bring against Whipbird must be resolved in accord with the Terms.
26.9 Any claim filed or brought contrary to the Terms shall be considered improperly filed and a breach of the Agreement.
26.10 Should You file a claim contrary to the Terms then Whipbird may recover its legal fees and costs (including reasonable legal fees) provided that Whipbird has notified You in writing of the improperly filed claim and You have failed to promptly withdraw the claim.
27. Unavoidable Delay
27.1 Without limiting the scope of the Terms Whipbird and its Affiliates will not be liable for any delay or failure in performance resulting directly or indirectly from any acts of nature or forces or causes beyond the reasonable control of Whipbird including (but not limited to) internet failure computer equipment failure communication equipment failure other equipment failure electrical power failure strike labour dispute riot insurrection civil disturbance shortage of labour or materials fire flood storm explosion act of God war governmental action order of a domestic or foreign court or tribunal or non-performance by any third party.
28. Electronic Communication
28.1 Any communication between You and Whipbird shall be by email.
28.2 Whipbird can only give You the benefits of the Site by conducting business through the internet. As a result Whipbird needs You to consent to electronic communication.
28.3 For contractual purposes You:
28.3.1 Consent to receive communications from Whipbird or a Client or a Customer in an electronic form; and
28.3.2 Agree that all terms and conditions agreements notices documents disclosures and other communications that Whipbird or a Client or a Customer provide to You electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
28.4 Your consent to receive communications and do business electronically and the agreement of Whipbird and a Client or a Customer to do so applies to all of your interactions and transactions with Whipbird and the Client and the Customer.
28.5 You may also receive a copy of the Terms by accessing the Site.
28.6 On acceptance of the Agreement Whipbird may send You a SMS text message or other message whether by way of email or through the Site or applications in connection with the Services or otherwise.
28.7 You are solely responsible for any costs You incur when receiving SMS text messages from Whipbird.
28.8 You may withdraw your consent to receive communications electronically by contacting Whipbird in the manner described below.
28.9 If You withdraw Your consent from that time forward You must stop using the Site and the Services.
28.10 The withdrawal of your consent will not affect the legal validity or enforceability of any obligations or any electronic communications provided or business transacted between You and Whipbird prior to the time You withdraw your consent.
28.11 You agree to keep Whipbird informed of any change to your email address and any mobile telephone number so that You continue to receive all communications without interruption.
29. General Terms
29.1 You are responsible for compliance with all applicable laws.
29.2 The Terms and the Agreement and the relationship between You and Whipbird will be governed by the laws of the State of Victoria, Australia.
29.3 You agree to the non-exclusive jurisdiction of the Courts of Victoria the Federal Court of Australia and of Courts entitled to hear appeals from those Courts.
29.4 The Agreement is personal to You and You may not transfer your rights and/or duties under the Agreement to anyone else.
29.5 Whipbird may transfer or novate its rights and obligations at any time without the requirement to obtain your consent.
29.6 You acknowledge that breach of your obligations under the Terms may not be adequately compensated by an award of damages and that if necessary Whipbird may seek an injunction to prevent any continuing or threatened breach of your obligations under the Terms.
29.7 The headings in the Terms are included for convenience and shall not affect the interpretation of the Terms.
29.8 No right under the Terms shall be deemed to be waived except by written notice signed by the waiving party. A waiver made by a party shall not prejudice its rights in respect of any subsequent breach of the same or any other right by that party.
29.9 Any provision in the Terms that is illegal void invalid or unenforceable will be ineffective only to the extent of such deficiency and will not invalidate any other provision of the Terms.
29.10 Nothing in the Terms shall be construed or interpreted as:
29.10.1 Constituting the relationship of partners between You and Whipbird;
29.10.2 Making You the agent representative employee joint venturer or fiduciary of Whipbird;
29.10.3 Making Whipbird the agent representative employee joint venturer or fiduciary of You.
29.11 The Terms constitute the entire agreement between You and Whipbird in respect of the subject matter and supersedes all previous agreements understandings and negotiations on that subject matter.
29.12 All of the provisions of the Terms that by their nature survive expiration or termination of the Agreement shall so survive.
30. Contact Information
30.1 We may give notice to You by email or a posting on the Site or other reasonable means.
30.2 You must give notice to Us in writing via email or as otherwise expressly provided on the Site.
31. Definitions
Unless inconsistent with the context the highlighted words and phrases used in the Terms (incorporating other forms of speech) shall have the meanings attributed to them:
31.1 Account means a personalised user interface accessed from the Site.
31.2 Account Credentials means the selected unique user identification and password chosen by a User when setting up an Account.
31.3 Affiliate means any Related Body Corporate of Whipbird.
31.4 Agreement means the agreement between You and Whipbird which incorporates all policies terms and conditions referred to in the Terms.
31.5 Client means a person who may or may not be your employer organisation who has established an Account to use the Site.
31.6 Content means all information and materials contained on the Site published by Whipbird.
31.7 Customer means a person seeking to utilise the Services offered by Whipbird on the Site.
31.8 Feedback means any reviews comments recommendations and/or multidimensional rating that You may leave on the Site.
31.9 Marks means any trademarks tradenames service marks or logos owned by or used by Whipbird or any Affiliates on the Site.
31.10 Related Body Corporate has the meaning set out in the Corporations Act 2001 (Cth) as amended from time to time.
31.11 Services means any or all the products software services promoted by Whipbird on the Site including (but not limited to) online courses accessed through the Site.
31.12 Site means the www.whipbirdcomms-education.thinkific.com website.
31.13 Technology means the software code proprietary methods and systems used to provide the Site and/or the Services and/or the intended functionality of the Site and/or the Services (whether provided directly by Whipbird or via any third party service provider).
31.14 Terms means these terms which shall be incorporated by reference in the Agreement.
31.15 User means a Client or Customer or other person who browses the Site.
31.16 Whipbird means Whipbird Communications Pty Ltd (ACN 630 85 313).
31.17 You means anyone accessing the Site for any reason and includes without limitation any Clients and Users and Customers