Terms and conditions & privacy policy

Last update: 13 February 2024

Please read these terms, conditions carefully. By signing up to the Platform, you acknowledge and accept to be bound to these terms, conditions.

1

Definitions and Interpretation

AI Programs means large language models and/or other machine learning, natural language processing, and/or or artificial intelligence algorithms, platforms, tools, programs, software, operation, and/or similar. 

Add-Ons means any add-ons selected by you and added to your Plan, including ready to go courses and/or additional Creator Seats.

Australian Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory.

Confidential Information of a party means the confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) of that party (disclosing party) which his disclosed to, or learnt by or accessed by the other party (receiving party), including information which: 

  1. is identified by the disclosing party as confidential or the receiving party ought to have been known to be confidential; and
  2. relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies of the disclosing party,

but does not include information:

  1. which is in, or comes into, the public domain other than by the receiving party’s breach of this agreement;
  2. which is independently known to, or developed by, the receiving party as evidenced by the receiving party’s written records; or 
  3. is or was made available to the receiving party by a person (other than the disclosing party) who is not, or was not, under an obligation of confidence to the disclosing party.

Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

Creator Seat means a User who is authorised to create courses in the Creator component of the Platform. 

Creator Base Subscription means your base subscription to access and use the Creator component of the Platform in accordance with your relevant Plan and these terms and conditions and conditions.

Dispute Notice means a notice issued by a party claiming a dispute has arisen, which is issued to the other party setting out the nature of the dispute and all other information relevant to the dispute.

Fee/s means (where applicable) the fees payable by you for your use of the Platform including for your Subscription, any overage of Monthly Active Users, and/or any applicable Add-Ons.

Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightning, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

  1. directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
  2. is beyond the reasonable control of that party.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

Learner Tier Subscription means your subscription to access and use (and allow Monthly Active Learner to access and use) the Learning Academy component of the Platform.

Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

Month means the period of time from the numerical day in the month that you first purchase a Subscription to the same numerical day of the following month and so on (eg 2 April – 1 May; 2 May – 1 June etc), except where the following month does not have the same numerical day, the month is considered to end on the last day of that following month (eg 31 January – 28 or 29 (as applicable) February).

Monthly Active Learner means a User who launches a lesson or a course in the Learning Academy component of the Platform at least once during a Month. 

Our IP has the meaning given to that term in clause 13.1.

Payment Cycle means the relevant timing of payments to us under this agreement and as agreed at the Point of Purchase (eg annually or monthly in advance).  

Payment Method means the form of payment selected by you at the Point of Purchase, and may include, but is not limited to, invoice, or automated payment by credit or debit card.

Plan means the plan selected and purchased by you for your Creator Base Subscription as described on the HowToo website (or other Point of Purchase), which determines scope of your Creator Base Subscription (eg number of Creator Seats, functionality, features, and support).

Platform means our digital learning authoring and academy software platform, known as HowToo made up of the:

  1. Creator component, in which Users who are assigned to Creator Seats create and design courses and learning content; and
  2. Learning Academy component in which Monthly Active Learners engage with, launch, and/or undertake the courses and learning content. 

Point of Purchase means the point at which you purchase your Subscription and/or any Add-Ons, including via our website and/or via any digital documentation issued by us to you.

Pre-Existing IP means any Intellectual Property Rights in any materials existing at the date of this agreement, including Intellectual Property Rights in software, hardware or documentation and materials used in our or your business.

Start Date means the date these terms and conditions are accepted by you.  

Subscription means either your Creator Base Subscription where that is the only subscription you have, or together your Creator Base Subscription and Learner Tier Subscriptions where you have both subscriptions.

Subscription Term means the duration of your Subscription as agreed to at the Point of Purchase and includes any renewal period. 

Tier means the tier of Monthly Active Learner under your Learner Tier Subscription and to which your Fees for the Learner Tier Subscription tie to (eg 0 – 20 users, 21 – 50 users, etc.).  

Update has the meaning given to that term in clause 10.

User means the employees, agents and independent contractors of yours who are authorised by you to be supplied User Logins to access and use Platform. Users includes users who are given a Creator Seat and Monthly Active Learners.

User Logins means the unique username and password of your Users for their access to, and use of, the Platform.

Your Content has the meaning given to that term in clause 13.3.

1.1.

In this agreement unless the context otherwise requires:

  1. clause and subclause headings are for reference purposes only;
  2. the singular includes the plural and vice versa; 
  3. where a word or phrase is defined its other grammatical forms have a corresponding meaning;
  4. references to statutes include all statutes amending, consolidating or replacing such statutes;
  5. $ means the lawful currency of Australia;
  6. any reference to a party to this document includes its successors and permitted assigns; 
  7. the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it; and
  8. a reference to a clause is a reference to a clause of this agreement.

2

Formation

2.1

When you purchase a Subscription (and/or Add-Ons) via the Point of Purchase and you accept these terms and conditions, an agreement is formed between you and HowTooLearn Pty Limited ACN 663 080 939 of Level 1, 1 Sussex St, Barangaroo NSW 2000 (HowToo, we, us, our) consisting of these terms and conditions and governing your use of, and access to, the Platform (agreement).

3

Trial

3.1

Some Plans may offer new customers access to the Platform for a trial at no charge. The trial will commence on the Start Date and will continue for a period of 30 days. You may cancel the trial at any time during this period by providing notice to us. At the end of this trial period, your access to the Platform will cease unless or until you purchase a Subscription.

4

Subscription components and structure

4.1

This agreement will commence on the Start Date and continue in accordance with the provisions set out below.

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Structure and Components

4.2

To access and use the Creator component of the Platform, you must have a Creator Base Subscription, which will either be annual or monthly, subject to the remainder of this clause 4.

4.3

Where you also want to access the Learning Academy component of the Platform, you must have a Creator Base Subscription for a relevant Plan and you must also have a Learner Tier Subscription, which will be the same length as your Creator Base Subscription (ie annually or monthly), subject to the remainder of this clause 4.

4.4

Your Subscription will consist of a Creator Base Subscription and, where you have signed up to the Learning Academy component of the Platform, will also include a Learner Tier Subscription.

4.5

Your Subscription will operate and renew in accordance with clauses 4.8 to 4.10 below. For your Learner Tier Subscription, your Tier and Monthly Active Users will operate in accordance with clause 4.11.

4.6

You are agreeing to having a Subscription on an auto-renewing basis for an indefinite period until cancelled by you or us in accordance with these terms and conditions.

4.7

When you have the relevant subscription, from time to time, you may also purchase Add-Ons which will be accessible as part of your relevant subscription.

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Subscription 

4.8

Your Subscription will commence on the Start Date and will initially continue for either:

  1. 12 months (Annual Subscription); or
  2. 1 month (Monthly Subscription)

(as selected at the Point of Purchase).

4.9

Your Subscription will automatically renew for successive periods equal to your initial Subscription Term, unless otherwise cancelled or terminated in accordance with these terms and conditions. For Annual Subscriptions, we will provide you with at least 14 days’ notice before the expiry of the then current 12 month period before such autorenewal.

4.10

When you have the relevant subscription, from time to time, you may also purchase Add-Ons which will be accessible as part of your relevant subscription.

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Monthly Active Learner Tier overage

4.11

If your Subscription includes a Learner Tier Subscription component, the number of Monthly Active Learners will be tracked each Month and if there are more Monthly Active Learners during that Month than those included in your Tier you will be charged additional Fees that align with the next Tier for the proportion of the Month when the overage usage occurred. Payment of the additional Fees will be in accordance with clause 6.3.

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Plan and Tier upgrades and downgrades.

4.12

You may upgrade or downgrade your Plan and/or your Tier as follows.

  1. For Monthly Subscriptions you can upgrade or downgrade your Plan and/or Tier at any time within the Platform. The downgrade will take effect at the commencement of the next Month and your Fees will be adjusted according to the new Plan and/or Tier. The upgrade will take effect immediately, however, where your upgrade occurs during a Month, for the first Payment Cycle in the following Month, in addition to the Fees for your new Plan and/or Tier, you will be charged the difference in Fees between what was your current Plan and/or Tier and the Plan and/or Tier you were upgraded to.

For Annual Subscriptions:

  1. you can downgrade your Plan and/or Tier at any time within the Platform, however, the downgrade will only take effect on renewal of your Subscription Term and your Fees will be adjusted according to the new Plan and/or Tier for that Subscription Term; and
  2. you can contact the HowToo sales team to upgrade your Plan and/or Tier during the Subscription Term including to adjust your Fees to reflect your new Plan and/or Tier and make payment of such adjustment for the remainder of your Subscription Term.

5

Subscription cancellation and termination

5.1

You may cancel your Subscription (either in whole or part, subject to clause 5.4) by giving us at least 7 days’ notice prior to your next applicable Payment Cycle (Cancellation Cut-Off).

5.2

If your cancellation request is received prior to the Cancellation Cut-Off, it will be effective on the date that you have paid the relevant Fees up to, subject to clauses 5.4 and 5.5. The relevant components that you have cancelled remain accessible by you until such date.

5.3

If your cancellation request is received after the Cancellation-Cut-Off, your payment of the Fees for the component(s) that you wish cancel and for their next applicable Payment Cycle(s) will be processed and the relevant components will be renewed until the date that you have paid the relevant Fees up to, subject to clauses 5.4 and 5.5, and the relevant components will remain accessible by you until the end of the then current Subscription Term you have paid the Fees for.

5.4

When your Creator Base Subscription is cancelled or terminates, your Learner Tier Subscription and access to your Add-Ons will also terminate.

5.5

On cancellation or termination of your Learner Tier Subscription, while your Fees will have been paid in advance, you will still be required to pay any difference in Fees for any Monthly Active Learner overage in accordance with clause 4.11

5.6

If you object to:

  1. an increase in Fees pursuant to clauses 6.5 or 6.6; and/or 
  2. a change to these terms and conditions in accordance with clause 18.6,

you may cancel your Subscription.

5.7

Where your cancellation request is received after the Cancellation Cut-Off, the terms set out in clauses 5.2 – 5.5 will apply, however, 

  1. the terms and conditions will not be varied and the then current terms and conditions will remain applicable; and 
  2. the Fees payable will not increase and your then current Fees will remain applicable,

until the effective date of cancellation. 

5.8

We reserve the right to cancel your Subscription at our reasonable discretion at any time and without giving any reasons for our decision. If we do so, your access to the Platform will cease effective from end of your then current Subscription Term.

5.9

Upon the cancellation of your Subscription the following will apply. 

  1. This agreement will terminate in accordance with the applicable termination provisions.
  2. If applicable and available as part of your Plan, you must download Your Content from the Platform prior to the effective date of termination (noting this does not include any ready to go content purchased as an Add-On). Please check your Plan, as downloading of Your Content is not a feature of all Plans.
  3. We will deactivate your User Logins and your access to the Platform on the effective date of termination.
  4. You must cease using the Platform and the Add-Ons. 
  5. You must pay to us all outstanding fees owed to us within 14 days.
  6. Each party must, on request, return or securely destroy all Confidential Information in that party’s control.
5.10

If you, or any of your Users, materially breaches any of these terms and conditions, or your Fees are not paid on time, we reserve the right to suspend your access to the Platform and/or permanently cancel your Subscription and terminate this agreement where such breach:

  1. is not capable of remedy; or
  2. is capable of remedy, but you have not remedied it within 30 days of receipt of a notice from us.
5.11

If you, or any of your Users, materially breaches any of these terms and conditions, or your Fees are not paid on time, we reserve the right to suspend your access to the Platform and/or permanently cancel your Subscription and terminate this agreement where such breach:

  1. is not capable of remedy; or
  2. is capable of remedy, but you have not remedied it within 30 days of receipt of a notice from us.
5.12

If applicable to your Plan, provision of access to any of Your Content that you have not downloaded off the Platform as at the date of any cancellation or termination will be at our sole discretion.

6

Fees

6.1

You will pay your Fees each Payment Cycle in accordance with the Payment Method and these terms and conditions 6.

6.2

If you purchase Add-Ons during your Subscription Term, the Fees for those Add-Ons will either be payable at the Point of Purchase and/or applied to the Fees owed for your next Payment Cycle.

6.3

Additional Fees for overage of your Monthly Active Users in accordance with clause 4.11 will be payable in the Month following the occurrence of the overage and in accordance with your Payment Method (ie we will either charge our nominated debit or credit card for automated payments or invoice you which you must pay within 30 days).

6.4

Where your Payment Method is automated payment:

  1. your nominated debit or credit card will be charged when your Subscription first commences and then you will be charged on each relevant Payment Cycle without further authorisation from you (subject to earlier cancellation, in accordance with these terms and conditions);
  2. it is your responsibility to ensure your that:
  • your payment details are always valid and up to date (including billing address); and
  • sufficient funds are available for payment of Fees;
  1. transactions will be performed through payment gateways (we currently use the payment gateway owned and operated by Stripe Payments Australia Pty Ltd ACN 160 180 343 for our online payment transactions);
  2. we are not liable for any charges you incur because of out of date payment information and if we incur any expense due to the same, we reserve the right to seek reimbursement from you for such expense; 
  3. if you believe you have been charged in error, you can contact us to confirm the details of the disputed charge at info@howtoo.co or contact your debit card or credit card provider; and
  4. if we are unable process payment, you authorise us to reattempt the payment method a maximum of four times in a four-week period and if such reattempts are unsuccessful, we reserve the right to:
  • seek payment via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party) (including payment for costs we incur for reattempting payment or seeking to recover the debt); and
  • we may suspend your account and access to the Platform until all overdue amounts are paid.

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6.5

Where your Payment Method is invoice: 

  1. we will invoice you for the Fees 30 days prior to your next Payment Cycle and you may pay the invoice within 30 days and in any case before your next Payment Cycle; 
  2. if you wish to raise a genuine dispute about an invoice, you must notify us before the due date and pay the undisputed portion by the due date; and.
  3. if you fail to pay an undisputed invoice by the due date, we reserve the right to charge interest on overdue amounts at the rate of 1.5% per month and/or suspend your account and access to the Platform until all overdue amounts are paid.
6.6

On 30 days’ notice to you, we may increase the Fees for any reason, including as a result of an increase in fees charged by Third Party Suppliers. The increase will take effect on your next applicable Payment Cycle.

6.7

Without limiting clause 6.6, the Fees may be increased each year by a percentage equal to the percentage increase in CPI for the same period. The increase will take effect on your next applicable Payment Cycle.

6.8

Unless otherwise expressly stated, all fees, prices or other sums payable or consideration to be provided under this agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST. GST and Taxable Supply have the meaning given to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7

Licence

7.1

We grant to you a non-transferrable, non-exclusive right and license to access and use the relevant component of the Platform and any the Add-Ons in accordance with your Plan, this agreement and for your internal business purposes unless or until your Creator Base Subscription and/or Learner Tier Subscription is cancelled or terminated.

7.2

We will provide you with:

  1. your Subscription to access to the Platform and the relevant components; 
  2. any applicable Add-Ons; and 
  3. the Users Logins.

8

Accounts

8.1

To access and use the Platform, your Users must set up an account using their allocated User Login.

8.2

You are solely responsible for:

  1. ensuring each User Login is operated by only one person;
  2. ensuring Users do not share, publish or otherwise make available to any third party their User Logins;
  3. all activity on your account by you or any of your Users including any unauthorised access by third parties; 
  4. maintaining the confidentiality and security of your account and the User Logins and notifying us immediately of any unauthorised use; and 
  5. protecting Your Content, including backing-up, and ensuring the security of, Your Content, taking appropriate measures to protect Your Content from accidental, unlawful or unauthorised access, use or disclosure. 

9

Your obligations

9.1

You must comply with, and ensure all Users comply with, all applicable laws, these terms and conditions, and our reasonable directions. 

9.2

In order for us to provide you with access to the Platform, you must promptly provide us with (as reasonably requested by us) relevant, accurate, complete and current information.

9.3

You must not:

  1. use, modify or adapt the Platform in any way that is contrary to this agreement or against any law (including for the purposes of infringing upon any third party Intellectual Property Rights);
  2. transfer, distribute or on-sell any copy of the Platform (or any derivative of them) to any third party; 
  3. distribute viruses, corrupt files, or any other similar software or programs that may damage the operation of any computer hardware or software;
  4. copy, cache, reproduce, reverse assemble or reverse compile the Platform in whole or in part;
  5. do anything that would prejudice the existing right, title or interest in the Platform; and/or
  6. engage in any other conduct that inhibits any other person from using or enjoying the Platform.
9.4

You must not submit, post or display any of Your Content that: 

  1. you do not have permission, right or license to use, upload, and permit use as contemplated by this Agreement; 
  2. is objectionable, offensive, unlawful, defamatory, deceptive or harmful; and/or
  3. is illegal, fraudulent, or manipulative.
9.5

You warrant that you have the rights to use Your Content and you take full responsibility for Your Content. You indemnify us against any claims or Loss relating to a breach of any third-party rights and/or a breach of any law or regulation because of, or arising out of or in connection, with Your Contents claim.

9.6

We may remove Your Content from the Platform if Your Content violates these terms and conditions, including if Your Content or is offensive or otherwise unacceptable to us in our sole discretion and/or including in the event any claims, threatened, alleged or issued in relation to Your Content, and/or for any other reasonable cause.

10

Updates and back-ups

10.1

We will provide, configure, install and maintain any and all updates, upgrades, enhancements, releases, corrections, bug fixes, patches and modifications to the Platform as we deem necessary (Updates).

10.2

We may suspend access to, or functionality on, the Platform from time to time to implement such Updates. We will use reasonable efforts to notify you of any Update that may interrupt the Platform.

10.3

Whilst we reserve the right to undertake back-ups of the Platform, however we are not obligated to do so, and you are solely responsible for backing up Your Content.

11

Limitation of liability

11.1

You are solely responsible for determining whether the Platform is suitable for your needs.

11.2

Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we:

  1. exclude all warranties, conditions and representations in whatever form, relating to the Platform (including any Add-Ons), including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use, guarantee of any particular outcome, and/or the security and operation of the Platform; and
  2. do not represent or warrant that the Platform is entirely secure, uninterrupted or error-free and you acknowledge that the public internet is an inherently insecure environment and that we have no control over the privacy of any communications or the security of any data outside of our internal systems.   
11.3

If any supply by us pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Australian Consumer Law, then nothing contained in this agreement restricts or modifies guarantee, right or remedy which pursuant to the Australian Consumer Law applies to this agreement or is conferred on you, provided that to the extent that the Australian Consumer Law permits the use to limit our liability for breach of guarantee imposed by the Australian Consumer Law, then to the extent permitted by the Australian Consumer Law, our liability for such breach is limited to:

  • in the case of goods, any one or more of the following acts as determined by us:

    • the replacement of the goods or the supply of equivalent goods; or
    • the repair of the goods; or
    • payment of the cost of replacing the goods or acquiring equivalent goods; or
    • the payment of reasonable costs of having the goods repaired; or

  • in the case of services any cost of the following as determined by us:

    • the supplying of the services again; or
    • the payment of the cost of having the services supplied again.
11.4

Notwithstanding any other provision of this agreement and to the fullest extent permitted by law: 

  1. our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed an amount equal to the fees paid by you to us in the 12 months preceding any claim;
  2. we are not liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, business interruption or a security breach).

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12

Third party products and AI Programs

12.1

We may use third party products, services and/or integrations in supplying you with access to the Platform and/or in respect of features or functionalities available as part of your Plan (including incorporating such products, services and/or integrations into the Platform). You acknowledge that:  

1. your use of, and access to, such third party products and services may be subject to:

i) usage parameters depending on your Plan and/or 

ii) additional fees and separate terms issued by the respective owner/operator of the relevant third party product and/or service, which will form a separate agreement between you and such owner/operator; 

2. we make no representations or warranties in relation to, and do not accept liability for, any such third party products and services; and

3.we may suspend your use of, or access to, such third party products and services at any time, including on request from the relevant owner/operator.

12.2

Such third party products, services, and/or integrations may include AI Programs and you also acknowledge the following in respect of such AI Programs to the extent that you use or engage with such programs.

  1. You are solely responsible for ensuring that any content, courses, and/or output created used an AI Program is fit for your purposes and we do not make any warranties, representations, and/or guarantees that use of an AI Program will develop content, courses, and/or output that is appropriate for your intended use and/or result in any particular outcome.
  2. You must only use and/or input content (including Your Content) into any AI Program that you own and/or otherwise have the rights to use (including for use with AI Programs).
  3. Your use of an AI Program is subject to the relevant program’s terms and conditions, including any rights of the owner/operator of the program to use (or authorise to be used) content that you input into the AI Program (including Your Content) (eg training the relevant program) and/or ownership of any output derived from your use of the program. We will notify you of the relevant program and give you access to the corresponding terms and conditions prior to your first use. 
  4. To the extent permitted by law and except to the extent that we, or the Platform, causes or contributes to the Loss, we will not be liable for any Loss suffered by you and/or your Users as a result of the use of any AI Program within the Platform, including any third party claims of infringement of Intellectual Property Rights.

13

Intellectual property rights

13.1

You acknowledge that the Intellectual Property Rights in the Platform, all Add-Ons (including all courses and content that form part of any Add-Ons) (including any source code, translations, compilations, partial copies and derivative works) (Our IP) contain confidential and proprietary information belonging exclusively to us (or the Third Party Product supplier).

13.2

Nothing in this agreement transfers ownership of any Pre-Existing IP to the other party or any other person.

13.3

Except for modifications, variations or edits made to any Add-Ons (including all courses and content that form part of any Add-Ons) (which will be owned by us and licensed to you in accordance with these terms and conditions), any Intellectual Property Rights arising in any content, including text, data, logos, documents, imagery, videos or other files entered, uploaded or created by you or your Users while using the Platform and/or the Add-Ons (Your Content) will be owned by you. 

13.4

As and between you and us, you own all Intellectual Property Rights in Your Content. You grant us a royalty-free, non-exclusive, revocable licence to use Your Content to the extent necessary to perform our obligations under this agreement.

13.5

You consent to us naming you as a client and reproducing your business name and logos for marketing and publicity purposes.

13.6

You agree we may, for our own business purposes, use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Platform.

14

Intellectual property rights

14.1

You acknowledge that the Intellectual Property Rights in the Platform, all Add-Ons (including all courses and content that form part of any Add-Ons) (including any source code, translations, compilations, partial copies and derivative works) (Our IP) contain confidential and proprietary information belonging exclusively to us (or the Third Party Product supplier).

14.2

Nothing in this agreement transfers ownership of any Pre-Existing IP to the other party or any other person.

14.3

Except for modifications, variations or edits made to any Add-Ons (including all courses and content that form part of any Add-Ons) (which will be owned by us and licensed to you in accordance with these terms and conditions), any Intellectual Property Rights arising in any content, including text, data, logos, documents, imagery, videos or other files entered, uploaded or created by you or your Users while using the Platform and/or the Add-Ons (Your Content) will be owned by you. 

14.4

You own all Intellectual Property Rights in Your Content.  You grant us a royalty-free, non-exclusive, revocable licence to use Your Content to the extent necessary to perform our obligations under this agreement.

14.5

You consent to us naming you as a client and reproducing your business name and logos for marketing and publicity purposes.

14.6

You agree we may, for our own business purposes, use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Platform.

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14

Confidentiality and privacy

14.1

Each party must comply with all applicable privacy laws (including the Privacy Act 1988 (Cth)) in connection with the collection, use, handling, disclosure, quality, security of and access to personal information that the party holds.

14.2

Both parties must keep all Confidential Information of the other party confidential and use such information for the sole purpose of performing the obligations under this agreement.

14.3

Neither party may use or disclose the Confidential Information of the other party except:

  1. for the reasonable purposes of fulfilling its obligations under this agreement or as otherwise permitted by this agreement; 
  2. to its employees or advisers on a need-to-know basis, subject to ensuring that such persons understand and comply with the confidentiality obligations under this clause;
  3. as required by law, subject to notifying the other party immediately if it becomes aware that such disclosure may be required; or
  4. with the other party’s prior written consent.

15

Force majeure

If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.

16

Dispute resolution

16.1

Any party who claims to have a dispute against another party must issue a Dispute Notice.

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16.2

Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.

16.3

If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.

16.4

Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.

17

Notices

17.1

A notice or other communication under this agreement is only effective if it is in writing and it is received in full and legible form at the addressee’s email address.

17.2

You must send any notices or other communication to us under this agreement to info@howtoo.co.

17.3

A notice will be deemed to be received the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message), unless the sender receives an automated message that the email has not been delivered.

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18

General

18.1

Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.

18.2

We may subcontract the performance of any part of our obligations and/or services to any third party, we will remain liable for the acts of subcontractors as if they were our own.

18.3

This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

18.4

The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

18.5

If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.

18.6

We may vary these terms and conditions by giving you notice via email as follows. 

  1. Where the variation relates to or impacts your Subscription, Plan, Tier or your ability to access to and use the Platform and/or either party’s warranties and liabilities under this agreement, we will provide you with 14 days’ notice prior to such change taking effect.  All other changes will be effective from the date of notification. 
  2. Subject to clause 5.6, your continued use of the Platform after the relevant effective date of notification will constitute acceptance of the amended terms and conditions. 
  3. The date set out at the start of these terms and conditions will reflect the date that they were last updated. 
18.7

Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.

18.8

Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.

18.9

This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.