Subscriber Terms and Conditions
Araya Pictures Pty Ltd (ACN 138 046 563) trading as “Energesse” (the “Provider”)is a provider of health, wellness and other business mentoring and educational services under the “Energesse” brand name and provided via the Provider’s website at http://www.energesse.com (the “Energesse Platform”). These terms and conditions apply in respect of the use of the Energesse Platform by any subscribers to the Energesse Platform (“Subscribers”) and to any services ordered by such Subscribers available via the Energesse Platform (“Services”).
- Effect of Terms
1.2 The Subscriber acknowledges that the Provider provides the Energesse Platform solely in accordance with these Terms and that the Subscriber has read and understood these Terms as forming a binding legal agreement between the Provider and the Subscriber in relation to the access and use of the Energesse Platform and the provision of any Services.
1.3 The Subscriber acknowledges that if there is any conflict between the content of these Terms and the content of the Website or any information provided to the Subscriber by the Provider, these Terms shall prevail (unless expressly provided otherwise by the Provider).
1.4 The Subscriber acknowledges that the Provider may, from time to time, revise these Terms. The Provider will post a notice on the Website and/or email Subscribers whenever it revises these Terms (“Notice of Change”), such revisions being effective seven (7) days after the date of posting and/or emailing of the Notice of Change. The Subscriber agrees that by continuing to use the Energesse Platform following such period, the Subscriber shall be deemed to have accepted any such revisions. It is the Subscriber’s responsibility to review these Terms periodically and if at any time the Subscriber finds any revision to these Terms to be unacceptable, the Subscriber should notify the Provider and cease using the Energesse Platform.
In these Terms, unless the context otherwise requires or permits:
2.1 “Confidential Information” means all information of a confidential nature relating to the relevant person (whether such information is disclosed in writing, orally, by visual presentation or by means of providing access to such information) including but not limited to any such information subsisting in any Content or Third Party Content;
2.2 “Content” means all information, data, materials, articles, images, videos, sound recordings and any other content accessible to the Subscriber via the Energesse Platform, regardless of the manner or context in which such content or other features are conveyed, embodied or delivered, including educational and training materials created by the Provider which form the substance of the Energesse Platform, such as instruction guides and videos, training modules, manuals, pamphlets, reference materials, newsletters, educational articles, tutorials, courses, seminars, webinars, interactive content, questionnaires, quizzes, workbooks and any content displayed, downloaded, accessed or conveyed via the Energesse Platform or via any means as part of any Services (including via electronic messages or any interactive medium such as telephone or Skype calls);
2.3 “Fees” means the fees and charges that may be payable by the Subscriber to the Provider pursuant to these Terms, including those fees and charges payable in respect of any Services;
2.4 “Intellectual Property Rights” means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction;
2.5 “Subscription” means the status achieved by a Subscriber by accepting these Terms and registering with the Provider to use the Energesse Platform;
2.6 “Subscription Term” means the period during which a Subscriber may access and use the Energesse Platform, as provided for in paragraph 4.2 below; and
2.7 “Third Party Content” means any Content accessible or available directly via the Energesse Platform which has been sourced from or provided by third parties, including content on websites that may be linked to or from the Website, and any Content provided by any other Subscriber or by any person who is not employed or engaged by the Provider to provide services in relation to the Energesse Platform.
- Nature of the Energesse Platform
3.1 The parties acknowledge and agree that, subject to the Subscriber complying with the terms and conditions of these Terms, the Subscriber shall be entitled, for the duration of the Subscription Term, to have access to and use of the Energesse Platform as permitted from time to time by the Provider, subject to the payment of any Fees payable by the Subscriber.
3.2 The Subscriber acknowledges and agrees that:
(a) any Services which the Provider provides to the Subscriber are provided strictly in accordance with these Terms and any additional terms as apply at the time of ordering such Services;
(b) the Subscriber will sign any additional documentation required by the Provider to be signed by all Subscribers in respect of any particular Services;
(c) the Energesse Platform and any Services are provided by the Provider in the form described on the Website or in any Content provided by the Provider, including by the provision of any applicable Third Party Content, to assist Subscribers in seeking to improve their business outcomes and general wellbeing, but the Subscriber acknowledges that no particular outcomes or improvement in general wellbeing is guaranteed in any way;
(d) the Services may be provided in any manner which the Provider deems appropriate;
(e) the Provider does not provide legal, accounting, taxation, financial or other professional advice and the Subscriber is responsible for seeking their own advice in relation to any Content or other aspects of any Services ordered by the Subscriber;
(f) the Provider does not guarantee any positive outcomes in respect of the provision of any Services or any Content and the Subscriber must exercise their own judgment and take any appropriate advice before seeking to implement any elements of the Services or any Content;
(g) the Services may not be tailored to the specific circumstances of the Subscriber and/or may not be appropriate for all Subscribers, thus Subscribers are urged to apply their own judgment as to whether the Services are suitable for their purposes;
(h) the Provider does not provide any warranty, representation or guarantee that the Subscriber will be able to receive any particular benefits as a result of the use of the Energesse Platform or any particular Services as any benefits which may be obtained are highly dependent on the circumstances and disposition of each individual Subscriber;
(i) the Services may or may not provide any benefits, improvements or other changes to the Subscriber as any effects may not be readily perceptible or may not be perceptible within a certain timeframe; and
(j) in respect of any Services ordered by the Subscriber which relate to health or wellness matters, such Services are not to be used as an absolute or static indicator of the Subscriber’s physical or psychological status and does not constitute medical advice or treatment to the Subscriber whatsoever (or for any person on behalf of the Subscriber), nor are such Services intended to be used as a substitute or supplement to seeking appropriate medical advice or treatment, and all Subscribers are urged to take appropriate medical advice and/or treatment in connection with any actual or suspected physical or psychological ailment, illness, disease or other health-related condition.
3.3 In using the Energesse Platform, the Subscriber irrevocably and unconditionally acknowledges and accepts the following:
(a) that the Provider provides the Energesse Platform and any particular Services on a purely ‘as is’ basis without warranty of any kind and, to the maximum extent permitted by law, the Provider expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the Energesse Platform and any particular Services, including, but not limited to, any implied warranties or guarantees of acceptable quality or fitness for a particular purpose not otherwise disclosed in these Terms;
(b) that the Energesse Platform, including the Content, is provided by the Provider, and shall only be used by the Subscriber, strictly in accordance with these Terms;
(c) that the Subscriber is only entitled to use the Content and any Third Party Content directly in connection with the use of the particular Services in respect of which such Content or Third Party Content was provided;
(d) that to the maximum extent permitted by law, the Provider is not responsible for any inability or delay in providing the Services for any reason which is outside the Provider’s immediate control (including to the extent such inability or delay is attributable solely to the acts or omissions of the Subscriber);
(e) that use of the Energesse Platform may require the Subscriber to comply with various requirements, including the use of computer hardware or software, having an active Internet connection, having appropriate telephony services and attending various venues, and it is the Subscriber’s responsibility to ensure that it complies with any and all such requirements, and the Provider shall not be liable in any way for any losses or damages suffered by the Subscriber as a result of the Subscriber failing to comply with any such requirements; and
(f) that the Subscriber will not use or attempt to use or abuse the Energesse Platform for any activity that violates local, state or federal law in any jurisdiction, or engage in any conduct which the Provider finds to be offensive or harmful, and the Subscriber hereby indemnifies the Provider to the full extent for any losses or damages suffered by the Provider as a result of such acts or omissions.
4.1 The Subscriber agrees and undertakes that, when registering as a Subscriber, the Subscriber will provide all information as required by the Provider.
4.2 The Subscription Term is the period from when a Subscriber accepts these Terms until the earlier of notice of termination issued by the Subscriber to the Provider or by the Provider to the Subscriber, such notice taking immediate effect. In the event of termination by either the Subscriber or the Provider, the Subscriber shall remain liable for any Fees in respect of Services ordered by the Subscriber.
4.3 The Subscriber will be entitled to use the Energesse Platform throughout the Subscription Term, subject to suspension or termination in accordance with these Terms. The right to the benefit of any Services will be subject to the Subscriber ordering and paying for the applicable Services and complying with these Terms and any additional terms that apply to the relevant Services.
4.4 The Provider may suspend a Subscriber’s registration with the Provider, thereby preventing the Subscriber from continuing to use the Energesse Platform, or suspend the provision of any Services to a Subscriber, if the Provider reasonably believes that the Subscriber has breached these Terms (including, for example, if the Subscriber has failed to make any payments due to the Provider).
4.5 The Subscriber acknowledges that, notwithstanding any other provision of these Terms, the Provider may alter the nature of, and/or suspend or cease providing, the Energesse Platform at any time.
4.6 In establishing a Subscription, the Subscriber irrevocably and unconditionally warrants, represents and undertakes that:
(a) the Subscriber is registering as an individual and not in the name of or on behalf of a company or other legal entity;
(b) the Subscriber must use their own lawful name and personal details in establishing the Subscription and in using the Energesse Platform;
(c) the Subscriber is at least 18 years of age (or such age as is required to enter into legal contracts in their own capacity;
(d) the Subscriber will not allow any other person to use the Subscription for any reason, and will actively takes steps to prevent any unauthorised person to do such;
(e) the Subscriber will notify the Provider immediately if it becomes aware of any unauthorised use of the Subscription or any Content;
(f) the Subscriber will not cause or allow the Subscription to be leased, sold, transferred to or operated by another person, whether for money or other valuable consideration or gratuitously;
(g) the Subscriber assumes full responsibility for maintaining the confidentiality of its Subscription, including any details required to access or operate the Subscription;
(h) the Provider is not responsible for any losses the Subscriber incurs due to informational or technical errors in the Subscriber registration process, and will not be liable for any loss or damage the Subscriber incurs as a result of an unauthorised person using the Subscription, including any information associated with the Subscriber;
(i) the Provider reserves the right to edit or delete any information associated with the Subscription without notice and liability to the Subscriber in the event that the Provider determines, in its sole discretion, that any such information violates these Terms; and
(j) the Provider reserves the right to suspend or terminate the Subscription, without notice and liability to the Subscriber, in the event that the Subscriber has violated these Terms in any respect, as determined by the Provider, at its sole and absolute discretion, or if the Provider deems it appropriate pending investigation of any such violation.
- Fees and Charges
5.1 The Subscriber must pay to the Provider any Fees that are stated to be payable for the provision of any particular Services or Content, time being of the essence.
5.2 The Subscriber acknowledges and agrees that:
(a) the Fees are, to the maximum extent permitted by law, not refundable upon the cancellation or termination of the Subscription or Services by the Subscriber for whatever reason;
(b) any Fees required to be paid by the Subscriber in exchange for the right of the Subscriber to use the Services are due and payable in accordance with the order submitted by the Subscriber for the relevant Services;
(c) the Provider may charge the Subscriber any administrative fees, such as credit card surcharges, associated with processing any payment made to the Provider; and
(d) the Provider is authorised to retain any credit card or direct debit banking details which the Subscriber provides to the Provider for the purpose of paying any Fees and that the Provider may, without obtaining the consent of the Subscriber, deduct any Fees payable to the Provider under these Terms using the Subscriber’s credit card or direct debit banking details when such Fees fall due.
- Warranties and Limitations
6.1 In respect of the Energesse Platform, the Subscriber warrants, represents and undertakes that:
(a) any information the Subscriber provides to the Provider in connection with the use of the Energesse Platform will be accurate, true and complete and the Subscriber will ensure that all such information remains up-to-date at all times during the Subscription;
(b) the Subscriber will not use the Energesse Platform other than in accordance with these Terms; and
(c) the Subscriber will not publish, distribute, sell, license, reproduce or communicate to the public any Content, Third Party Content or any Confidential Information in any form and through any medium without the prior written permission of the Provider.
6.2 Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, the maximum liability of the Provider for any loss or damage incurred by the Subscriber arising out of, in connection with or relating to the use of the Energesse Platform or the provision of any Services or a breach or termination of these Terms by the Provider, regardless of the type of action the Subscriber may bring against the Provider for such loss or damage, is limited to the total Fees paid by the Subscriber to the Provider at the time any such claim is notified to the Provider.
6.3 Notwithstanding any other provision of these Terms, the Subscriber agrees that in no circumstances shall the Provider be liable for any indirect or consequential loss or damage suffered by the Subscriber in connection with or relating to the use of the Energesse Platform or any Services or Content or Third Party Content or a breach or termination of these Terms by the Provider. Each party agrees that loss of profits, loss of business opportunities, loss of reputation, loss of anticipated savings, loss of revenue, loss of goodwill and loss of contracts however occurring, will constitute indirect or consequential loss or damage.
6.4 Nothing in these Terms excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include Australian Consumer Law and corresponding provisions of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances. If any condition, warranty or statutory guarantee is implied into these Terms or applies by operation of law and cannot be excluded but the Provider is able to limit its liability for a breach of such condition, warranty or statutory guarantee, the liability of the Provider for breach of that condition, warranty or statutory guarantee is limited, to the extent permitted by law, at the Provider’s discretion, to the supply of the services again or the payment of the cost of having the services supplied again.
7.1 If at any time the Subscriber wishes to cancel the Subscription, the Subscriber must notify the Provider in writing and immediately cease using the Energesse Platform.
7.2 The Subscriber acknowledges and accepts that the Provider may terminate or suspend access to the Energesse Platform and the provision of any particular Services to the Subscriber, including the cancellation of the Subscription, if the Subscriber breaches any of these Terms. If the Provider exercises its rights under this paragraph 7.2, the Subscriber is not entitled to recover from the Provider any compensation (including the refund of any Fees paid) or other remedy in respect of any loss or damage, howsoever arising, which the Subscriber incurs as a result.
7.3 If the Provider suspends the Subscriber’s entitlement to use the Energesse Platform or any particular Services by exercise of any rights in these Terms, the Provider may also, at its discretion, terminate, cancel or otherwise prevent the Subscriber from using any other feature of the Energesse Platform (including cancelling the Subscription), without liability to the Subscriber.
7.4 The Subscriber acknowledges and accepts that, should its Subscription be terminated in accordance with paragraphs 7.2 or 7.3 above, it must not subscribe for another Subscription.
- Intellectual Property
8.1 The Subscriber acknowledges and agrees that:
(a) all Content is made available to the Subscriber by means of a limited and non-exclusive licence from the Provider to allow the Subscriber to use and enjoy the particular Services in respect of which the Content was provided in accordance with these Terms;
(b) the Subscriber is only entitled to use the Content and any Third Party Content in connection with the relevant Services ordered by the Subscriber and subject always to these Terms;
(c) the Provider (in respect of the Content) and the applicable third party (in respect of Third Party Content) retains full and complete title and interest (including Intellectual Property Rights) to such Content or Third Party Content, as applicable;
(d) the Subscriber must not copy, license, sell, distribute, publish, communicate to the public, store or reproduce, decompile, reverse-engineer, disassemble, or otherwise convert the Content or any Third Party Content by any means; and
(e) the Subscriber must remove or destroy all Content or Third Party Content that is in the Subscriber’s control or possession at the end of the Subscription Term and cease any and all use of the Content and Third Party Content after the end of the Subscription Term.
8.2 In respect of all Third Party Content accessible via the Energesse Platform, the Subscriber acknowledges and agrees that the Provider does not purport to confer on the Subscriber any right, title or interest in any such Third Party Content and does not grant to the Subscriber any right to use Third Party Content except when such use is incidental to the use of the Energesse Platform in accordance with these Terms. The Subscriber acknowledges and agrees that the mere access or availability of the Third Party Content to the Subscriber in connection with the Energesse Platform shall not be an inference that the Provider has any relationship, affiliation or association with the author of the Third Party Content.
All information shall be treated securely in accordance to the Energesse Information Security Policy.
9.1 The Subscriber undertakes to keep confidential any Confidential Information relating respectively to the Provider and any other Subscriber which it obtains under or in connection with these Terms and/or otherwise in relation to the use of the Energesse Platform and not to use such information or disclose it to any other person, other than as permitted under this paragraph 9
9.2 In using the Energesse Platform, the Subscriber undertakes to keep confidential any Third Party Content to the extent that it comprises information of any kind contributed in any format by any other Subscriber (and any such Third Party Content shall be deemed to be Confidential Information).
9.3 If required by the Provider, the Subscriber undertakes to enter into any form of non-disclosure agreement as reasonably required by the Provider in relation to the Subscriber’s participation in any event, meeting, conference call, session or other activity pursuant to any particular Services, to the extent that the Provider requires all participants in such activities to enter into the same form of non-disclosure agreement.
9.4 The obligations contained in this paragraph 9 shall continue to apply for the term of the Subscription and thereafter until any such Confidential Information ceases to be confidential other than as a result of a breach of this paragraph 9 by the recipient of the Confidential Information.
10. Dispute Resolution
10.1 In the event that the Subscriber believes that a dispute, controversy or claim (“Dispute”), arising out of or in connection with the Energesse Platform or these Terms has arisen, the Subscriber must comply with the following complaint procedure before commencing any legal proceedings or seeking any other remedy against the Provider or any other person:
(a) the Subscriber must first provide full details of the Dispute to the Provider by email at email@example.com and allow the Provider a reasonable amount of time to investigate the Dispute before providing a written response; and
(b) the Subscriber shall assist and cooperate with the Provider during the period when the Provider investigates and assesses the nature of the Dispute.
10.2 Nothing in this paragraph 10 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute in accordance with paragraph 10.1 above.
11.1 All notices or other communications required or permitted to be given under these Terms must be given via any means permitted by the Website or by email using the email addresses ordinarily used by each party.
11.2 If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
11.3 These Terms constitute the entire agreement between the parties in relation to its subject matter.
11.4 For the avoidance of doubt, a reference to the Provider in these Terms shall include a reference to any employees and contractors engaged by the Provider to provide the relevant Services (the “Provider’s Personnel”), however, these Terms shall only apply in respect of any services provided by the Provider’s Personnel where those services are provided directly as part of the Services offered by the Provider.
11.5 These Terms shall be construed in accordance with and governed by the laws of New South Wales, Australia, the Courts of which shall have jurisdiction in respect of disputes arising out of or related to the use of the Energesse Platform, the provision of any Services or otherwise in relation to these Terms.