TERMS OF USE

This page sets out the general terms and conditions of access to and use of the Services.

1. ACCEPTANCE OF AGREEMENT

1.1 The Services are owned and operated by Upskill LMS. Certain terms and expressions that are used in these Terms of Use have the meanings set out in the Dictionary at the end of the Terms of Use or elsewhere in this Agreement.

1.2 Your use of the Services in any manner, including by visiting, accessing, browsing or linking to the Services or by using any other feature, tools or elements provided by us within the Services, is subject to and conditional upon your acceptance and compliance with the terms, conditions, policies, notices and disclaimers contained in these Terms of Use and elsewhere on the Services. Your use of the Services in any manner constitutes your unconditional acceptance of agreement to be bound by the Agreement (which includes these Terms of Use). These Terms of Use affect your legal rights and obligations. If you do not agree to be bound by all of these Terms of Use, do not access or use the Services.

1.3 If you are using any of the Services for or on behalf of a company or other legal entity or organisation, you represent and warrant that you are authorised to enter into this Agreement and any other agreement on behalf of that company or other legal entity or organisation, and that all provisions of the Agreement will bind that company or other legal entity or organisation.

2. ADDITIONAL TERMS AND POLICIES

2.1 The features, tools and elements of the Services that allow users to build any Course(s), distribute any Course(s), create a white label portal, purchase access to any Course(s) and/or to enrol and participate in any Course(s):

(a) are accessible only to users with an active account; and

(b) are subject to additional policies, terms, conditions and/or agreements that apply in addition to these Terms of Use, as provided to the user prior to use of the relevant Services (including the terms and policies described in clause 2.2).

2.2 It is important to read, understand and comply with all our additional policies, terms, conditions and/or agreements as they provide the rules for using the relevant Services. Our additional policies and terms (including all policies and terms referenced in them) are incorporated in and form part of this Agreement, and includes without limitation, our Privacy Policy and our Course Builder Terms, Distributor Policy, White Label Policy, and Client & Learner Policy (each of which are provided to the relevant users for acceptance before using the relevant Services).

2.3 If there is any conflict or inconsistency between the specific terms, conditions or policy that applies to any feature, tool or element of the Services and these Terms of Use, the specific terms, conditions or policy will prevail to the extent of the conflict or inconsistency.

3. ACCESSIBILITY

3.1 The Services may be accessed and used in a number of ways including, without limitation, by:

(a) general users who access or browse any of the Services, without creating an account; and

(b) users who have created an account in order to use any of the features, tools or elements of the Services that are available only to account-holders.

3.2 When you create an account, you must provide current, complete and accurate information, and you must maintain and promptly update your information so that it is true, accurate, current and complete at all times. Upskill LMS shall have no liability to you (or any third party) arising from or in connection with your failure to maintain and update your information, including, but not limited to, any claim, loss or damage from your failure to receive information about the Services.

3.3 You are responsible for maintaining control over access to your account (including the confidentiality of your password). You are also responsible for any and all activities that occur under your account, whether authorised by you or not, and you must notify Upskill LMS immediately of any suspected, threatened or actual unauthorised use of your account or any other breach of security. Upskill LMS will not be liable for any claim, loss or damage arising as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Upskill LMS or a third party due to your conduct or someone else using your account or password.

3.4 The Services are available only to, and may only be used by, individuals who are 13 years and older who can form legally binding contracts under applicable law. Individuals under the age of 13 must at all times use Upskill LMS's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 13 years of age. In this all cases, the adult is the user and is responsible for any and all activities.

3.5 We may make changes to the Services from time to time, including without limitation, the availability of tools or features; how long, how much or how often any given tool or feature may be used; and feature dependencies upon other services or software. We will provide you with prior notice before removing any material feature or functionality of the Services, unless security, legal, or system performance considerations require an expedited modification or removal.

4. PURPOSE OF THE SERVICES

4.1 The Services and all materials displayed by Upskill LMS or any Upskill LMS Affiliate on or through the Services, including without limitation all of Upskill LMS’s information, text, materials, images, photographs, graphics, video, navigational elements, software, tools, names, logos and trade marks on the Services (Upskill LMS Content) are made available for personal, non-commercial purposes, unless you have otherwise entered into an agreement with us.

4.2 Upskill LMS does not develop or create any Course(s), associated Course-content or third party links that are accessible through the Services. Rather, Upskill LMS provides the Services as a single point of access where eligible users can interact as:

(a) Training Providers in order to build and make available Courses, sell access to CoursesCourses, transact and interact with Clients and Learners, and manage communications and other functions concerning any Course(s) (including appointing Distributors for any Course(s));

(b) Distributors in order to sell access to any Course(s);

(c) Clients in order to purchase access to any Course(s), whether for their own use or for the use of a company or organisation; and/or

(d) Learners in order to enrol, purchase access to, and participate in, any Course(s) made available through the Services.

4.3 This means that in providing the Services, the role of Upskill LMS is limited to providing a platform for interaction between Training Providers, Distributors, Clients and/or Learners. You are solely responsible for your business dealings or other interaction with other users of the Services, whether online or offline. As a result, you acknowledge and agree that:

(a) Upskill LMS will not be responsible or liable for any claim, loss or damage of any sort arising from or in connection with any such dealings or other interaction; and

(b) if a dispute arises between you and any one or more users (whether a Training Provider, Distributor, Client or Learner), you release Upskill LMS and the Upskill LMS Affiliates from any claims, demands and damages (actual and consequential, and whether direct or indirect) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.

4.4 Upskill LMS does not make any representation or warranty about the identity or credentials of any other user. Such information is based solely on data that the relevant user submits and we provide such information solely for the convenience of users. The provision of the Services and such information is not an introduction, endorsement or recommendation by Upskill LMS.

5. USE OF THE SERVICES

5.1 You are solely responsible for your use (including your conduct and activities) of the Services. When using the Services, you must not:

(a) copy, reproduce, modify, create derivative works from, distribute or publicly display the Services or any Upskill LMS Content, or any content provided by a third party, except to the extent permitted by law, or with the prior written consent of Upskill LMS or the appropriate third party (as applicable);

(b) use the Services or any Upskill LMS Content to establish, maintain or provide, or assist in establishing, maintaining or providing a learning management system;

(d) upload, publish or post false, inaccurate, misleading, defamatory or offensive content;

(e) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;

(f) distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes, or distribute viruses or any other technologies that may harm Upskill LMS, any of the Services, or the interests or property of any third party;

(g) take any action that imposes, or may impose, in Upskill LMS’s sole discretion, an unreasonable or disproportionately large load on Upskill LMS’s infrastructure;

(h) use the Services in any manner that could damage, disable, overburden, or impair the Services or any network or other infrastructure used by or connected to Upskill LMS;

(i) interfere or attempt to interfere with the proper working of the Services, any other party's use and enjoyment of the Services, or any activities conducted on, or in connection with, any of the Services;

(j) bypass any robot exclusion headers or other measures Upskill LMS may use to prevent or restrict access to Upskill LMS; or

(k) gain, or attempt to gain, unauthorised access to any areas of the Services, other accounts, or any systems, networks or infrastructure used by or connected to Upskill LMS.

5.2 You must immediately notify us and any relevant authorities if you become aware of any use of the Services that is, or is likely to be, illegal or threatening to the health or safety of any person.

5.3 You agree and consent to Upskill LMS collecting, using and disclosing to third parties your personal information in accordance with our Privacy Policy. You acknowledge that your submission of any information, statements, data, and content to us is voluntary on your part and that Upskill LMS may process such information within the terms of the Privacy Policy.

6. PAYMENTS AND CURRENCIES

6.1 Fees may be payable for use of certain features of the Services. The amount of those fees and the payment terms will be notified to you prior to the relevant amount being charged to you.

6.2 Some of the Services may display rates in a local currency, or may provide a currency calculator. These rates are based on a conversion from the originating currency using indicative market exchange rates. You understand and agree that such rates and any currency calculator are indicative and provided as general information only.

7. REVIEWS, COMMENTS AND COMMUNICATIONS

7.1 Where the Services permit, users may post reviews, comments, and other content; send communications and submit suggestions, ideas, comments, questions, material or other information (each being an item of User Content), provided that the User Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties, and provided that such use and User Content complies with the Agreement.

7.2 Upskill LMS reserves the right (but not the obligation) to remove or edit such User Content, but does not regularly review posted User Content. Upskill LMS takes no responsibility and assumes no liability for any User Content posted by you or any third party.

7.3 If you post, submit or otherwise supply any User Content, you grant Upskill LMS a nonexclusive, worldwide, royalty-free, irrevocable, transferable and fully sublicensable right to use, reproduce, modify, adapt, publish, publicly perform, translate, create derivative works from, distribute, and publically display such User Content throughout the world in any media. You grant Upskill LMS and its sublicensees the right to use the name that you submit in connection with such User Content, if they choose. You acknowledge and agree that you are not entitled to any compensation or reimbursement of any kind from Upskill LMS in connection with any use described in this paragraph.

7.4 You represent and warrant that you own or otherwise control all of the rights to the User Content that you post; that the User Content is accurate; that use of the User Content you supply does not breach the Agreement and will not cause injury, loss or damage to any person or entity.

7.5 You must indemnify and keep indemnified Upskill LMS and the Upskill LMS Affiliates for all claims resulting from User Content you supply, upload or transmit.

8. DISCLAIMER AND LIMITATION OF LIABILITY

8.1 The Services, the website and all content on the Services are provided "as is", “as available” and on a "with all faults" basis, without warranties of any kind either express or implied, and the entire risk as to the quality and performance of the Services is with you.

8.2 Without limiting any other provision of the Agreement, Upskill LMS makes no representation or warranty about:

(a) any of the Services, the results that may be obtained from the use of the Services, or the accuracy, reliability, availability, veracity, timeliness or content of any of the Services;

(b) whether the Services will be up-to-date, uninterrupted, timely, secure, error-free or non-misleading, or that defects in the Services will be corrected;

(c) whether the Services or any data, content or material will be backed up or whether business continuity arrangements are in place in respect of the Services;

(d) any third party agreements or any guarantee of business gained by you through the Services or through Upskill LMS or any Upskill LMS Affiliate(s); or

(e) the Services, or the systems or infrastructure on which the Services are based, being error or malicious code free, secure, confidential or performing at any particular standard or having any particular function.

8.3 To the extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, quality, suitability and non-infringement.

8.4 While it is Upskill LMS's intention for the Services to be available as much as possible, there will be occasions when all or part of the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

8.5 You acknowledge and agree that in no event shall Upskill LMS or any Upskill LMS Affiliates be liable in any way, whether in contract, warranty, tort (including negligence), or any other form of liability, for:

(a) any claim, loss or damage, which may be incurred by you as a result of, or in connection with your use of, the Services and/or any third party content;

(b) any special, indirect, incidental or consequential loss or damages (including, without limitation, legal fees); or

(c) any direct or indirect loss or damages whatsoever resulting from loss of use, data or profits, arising out of or in connection with your access to, use of, or inability to access or use any of the Services, or performance of software, documents, provision of or failure to provide Services, or information available from the Services,

whether or not Upskill LMS or any Upskill LMS Affiliates have been advised of the possibility of such losses or damages arising.

8.6 Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Nothing in this Agreement is intended to limit or exclude any warranty or liability where and to the extent that applicable law prohibits such exclusion or limitation, including under the Australian Competition and Consumer Act 2010 (Cth). Accordingly, some of the above disclaimers and limitations of liability may not apply to you. To the extent that Upskill LMS or any of the Upskill LMS Affiliates may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of the liability of Upskill LMS or the Upskill LMS Affiliate shall be the minimum permitted under such applicable law.

9. INDEMNITY

9.1 You must indemnify and hold harmless, and keep indemnified and continue to hold harmless, Upskill LMS and the Upskill LMS Affiliates against all claims, loss, actions, proceedings, costs, expenses (including legal fees), claims and damages arising from:

(a) any breach by you of the Agreement, or of any laws, rules, regulations, codes, statutes, ordinances or orders of any government authority or court; or

(b) your breach, or alleged breach, of any third-party right, including without limitation, any intellectual property right, confidentiality, or privacy right; or

(c) reliance by you on any information obtained through the Services including, without limitation, any Upskill LMS Content or any third party content; or

(d) your access to or use of the Services.

10. ADVERTISING AND LINKS TO OTHER WEBSITES/APPLICATIONS

10.1 The Services and certain Course content may contain links to third party sites or applications (External Sites). External Sites are not under the control of Upskill LMS, and Upskill LMS is not responsible for the content of any External Sites. Where Upskill LMS provides links to any External Sites, it does so for your convenience only, and the inclusion of any link does not imply any recommendation or endorsement of the External Sites by Upskill LMS or any Upskill LMS Affiliate. You link to any External Sites entirely at your own risk.

10.2 The Services may also contain third party advertisements including banner ads, third party logos and information, material and documents relating to or provided by third parties (including, but not limited to, Training Providers) (Third Party Material). The Third Party Material may contain embedded hyperlinks to websites operated by third parties or their licensees or contractors (Third Party Websites). Neither Upskill LMS nor Upskill LMS Affiliate recommends or endorses the products or services of those third parties.

10.3 Neither Upskill LMS nor any Upskill LMS Affiliate gives any representation or warranty as to the reliability, accuracy or completeness of any Third Party Material on the Services, Third Party Websites, or External Sites, nor do they accept any responsibility arising in any way (including negligence) for errors in, or omissions from such Third Party Material, Third Party Websites, or External Sites.

11. INTELLECTUAL PROPERTY NOTICE

11.1 Except where expressly provided otherwise in the Agreement, you do not have any right, title or interest in or to any proprietary rights relating to the Services or the Upskill LMS Content.

11.2 Upskill LMS and any other product or service name or slogan or logo contained in the Services are trademarks of Upskill LMS and its suppliers or licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Upskill LMS or the applicable trademark holder. Ownership of all such trademarks and the goodwill associated therewith remains with Upskill LMS or the applicable trademark holder.

11.3 You may not use any metatags or any other "hidden text" utilizing any name, trademark or product or service name of Upskill LMS without Upskill LMS's prior written permission.

11.4 In addition, the look and feel of the Services (including all page headers, custom graphics, button icons and scripts) is the service mark, trademark and/or trade dress of Upskill LMS and may not be copied, imitated or used (in whole or in part) without Upskill LMS's prior written permission. Reference to any products, services, processes or other information, by trade name, trademark or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Upskill LMS.

11.5 Nothing contained on the Services should be construed as being any licence or right of use of any trade mark displayed on the Services.

12. LINKING TO THE SERVICES

12.1 Any link to the Services and its associated webpages must:

(a) be a text link and must otherwise comply with the Agreement and any linking guidelines or brand use guidelines that are published by Upskill LMS or provided to you from time to time;

(b) not, in Upskill LMS's opinion deceive or mislead, nor suggest any relationship, endorsement or sponsorship between your site and the Services;

(c) not replicate any Upskill LMS Content (including any Upskill LMS logo), without the express written consent of Upskill LMS;

(d) not misrepresent your relationship with Upskill LMS and must not present false or misleading information about Upskill LMS or any Services;

(e) not contain content that could be construed as distasteful, offensive or controversial.

12.2 The link must be made in good faith, and must not in Upskill LMS’s reasonable opinion cause the Upskill LMS brand or any Upskill LMS trade mark to be viewed in a negative or potentially negative light and the link must not frame the Services.

12.3 No other linking is permitted unless it is the subject of a separate specific written agreement between you and Upskill LMS. Upskill LMS reserves the right to withdraw linking permission without notice.

13. CANCELLATION, SUSPENSION AND TERMINATION

13.1 You may cancel your Upskill LMS account at any time by ceasing to access or use any of the Services, or by otherwise following any instructions that we provide to you for cancelling your account.

13.2 User accounts that have not been logged into for a continuous period of 12 months will be deactivated and/or archived by Upskill LMS.

13.3 We may close or suspend your account, or limit your access to any of the Services if:

(a) we determine that you have breached, or are acting in breach of, the Agreement;

(b) we determine that you have infringed any laws or regulations or the rights of a third party, including infringing someone else's intellectual property rights, or if we determine that you have engaged, or are engaging, in fraudulent, or illegal activities; or

13.4 All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

14. GENERAL

14.1 The Services and any information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which would subject Upskill LMS to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction at any time.

14.2 Upskill LMS may, in its sole discretion, refuse to offer access to or use of any of the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.

14.3 If Upskill LMS is partially or wholly precluded from complying with its obligations under this Agreement by any event, matter or circumstance that is beyond its reasonable control, then Upskill LMS’s obligation to perform will be suspended for the duration of the delay arising out of the event, matter or circumstance.

14.4 You agree that if Upskill LMS does not exercise or enforce any legal right or remedy contained in this Agreement (or which Upskill LMS has the benefit of under any applicable law), this will not operate as a waiver of Upskill LMS's rights and that those rights or remedies will still be available to Upskill LMS.

14.5 We may amend or replace these Terms of Use at any time by posting the amended or replacement terms on the Upskill LMS website or in the Services. The revised version will be effective immediately at the time we post it. Please check these Terms of Use periodically for changes. Your continued use of any of the Services after posting of the changes constitutes your binding acceptance of such changes. However, if the revised version includes a material change, it will be effective for an existing user on the earlier of: (a) the date you accept it; and (b) 30 days after the material changes are initially posted to the Upskill LMS website or elsewhere in the Services.

14.6 You agree that you will receive all notices required under the Agreement electronically, by any means reasonably nominated by Upskill LMS from time to time, including without limitation by email, or by means of a banner message or other notice posted within the Services. Alternatively, notice may consist of an email from Upskill LMS to an email address associated with your account. We may also give you notice by mail to the address provided by you during the registration process. Any notices to Upskill LMS must be given by registered ordinary post (or if posted to or from a place outside Australia, by registered airmail). In such case, notice will be deemed given three days after the date of mailing. All dealings, correspondence and contacts between us must be made or conducted in the English language.

14.7 If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision which will be severed and the remaining provisions will continue in full force and effect.

14.8 You must not assign, transfer, charge, sub-contract, or otherwise deal with all or any of your rights and/or obligations under the Agreement. Upskill LMS may assign, transfer, novate the Agreement (in whole or in part), sub-contract any of its obligations under the Agreement, or otherwise deal with the benefit of, or a right under, the Agreement, to any other person without obtaining your consent.

14.9 Nothing in the Agreement creates, or will be deemed to constitute, a partnership, joint-venture, agency or fiduciary relationship between you and us.

14.10 This Agreement may be executed in multiple counterparts and by electronic means. You acknowledge that in entering into this Agreement you have not relied on any representation or warranties about its subject matter except as expressly provided in this Agreement.

14.11 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

14.12 No person who is not a party to the Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to the Agreement its assent to any such term.

14.13 This Agreement (and all non-contractual obligations arising out of or connected to this Agreement) is governed by and construed in accordance with the laws of New South Wales, Australia. Both parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.

15. Dictionary

In these Terms of Use, unless the context otherwise requires:

Agreement means these Terms of Use, the Privacy Policy, and any additional policies, terms, conditions and/or agreements provided by us in connection with the Services and which are accepted by you in the course of using any of the Services.

Client means any person, entity or organisation that has been granted a licence or other right to access or use any Course(s), whether for their own use or for use by a third party.

Course means an educational, training or other information or instructional-based course or program offered through the Services.

Distributor means any person, entity or organisation that has been engaged or appointed by a Training Provider or Client to market, sell, resell, distribute or otherwise permit access to a Course(s).

Learner means any person who enrols, purchases access to, or otherwise participates in, any Course(s).

Services means the Upskill LMS website(s) and the related domains, websites, mobile device properties, applications, tools, software, functionality, methodologies, services and capability associated with the learning management system that is operated and maintained by Upskill LMS and made available to you as set out in this Agreement.

Training Provider means any person, entity or organisation that uses the Services to build or otherwise make available or sell access to any Course(s).

Upskill LMS, we, our, or us means Upskill Learning Management System Pty Limited ACN 151 618 364, a company incorporated in Australia.

Upskill LMS Affiliate means in relation Upskill LMS, its employees, agents, consultants, directors, shareholders, any other person or entity that directly or indirectly controls, is under common control with, or is directly or indirectly controlled by, Upskill LMS.

You or your means any person visiting, accessing or using the Services, and includes and company or other legal entity or organisation as set out in clause 1.3.