OnTrackCBT.com A division of Absolute Data Group Pty Ltd
General Terms and Conditions of Supply
1 Interpretation
a) ‘Contract’ means the contract arising from the acceptance by Absolute Data Group (ADG) of the Customer’s Order to which these terms and conditions apply.
b) ‘Customer’ means the person or company to whom Products and/or Services are supplied and includes that company’s successors and permitted assigns.
c) ‘ADG’ means Absolute Data Group Pty Ltd (ACN 080 575 079), the supplier of Products and/or Services to the Customer, and includes ADG’s successors or assigns.
d) GST has the meaning given by the GST Law.
e) GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
f) ‘In writing’ means in any written format including electronic or paper.
g) ‘OnTrackCBT.com’ means the on-line training division of ADG that has utilises ADG’s hosted Skills M5 software
h) ‘Order’ means an order for Products and/or Services submitted by the Customer to ADG.
i) ‘Products and/or Services’ means the products and/or services supplied by ADG to the Customer and computer software incorporated therein which is licensed by ADG to the Customer and specified on the invoice dispatched by ADG to the Customer.
j) ‘Standard Working Day’ means one full business day starting at 9.00am and ending at 5.00pm.
2 Operation
a) These terms and conditions and any other terms and conditions incorporated by reference into these terms and conditions apply to all Products and/or Services provided by ADG to the Customer and form the sole agreement between ADG and the Customer. To the extent permitted by law, these terms and conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of the Customer order forms or other documentation and shall supersede all prior arrangements, written or oral.
b) The continued operation of these terms and conditions shall not be affected by any repudiation of any contract or transaction relating to the Products and/or Services between ADG and the Customer.
c) The Customer agrees to these terms and conditions by ticking the box labeled “I have read and accept the Terms and Conditions of supply”, as available on the ADG On-line Training website.
3 Order Confirmation
a) Intention to purchase products or services from ADG is based on the up front payment of the total amount listed on the ADG On-line Training website.
b) For On-line Training, once payment is processed, the course is not refundable, and are available for access on ADG’s on-line training system for 1 year from date of purchase.
4 Terms of Payment
a) Payment must be made by accepted credit card (Visa, Mastercard and American Express), before training access is given. Credit card charges apply for American Express cards.
b) Paid invoice receipts will be sent to the email address supplied
c) Trial Offers, Coupons, Credits and Special Offers. OnTrackCBT reserves the right to discontinue or modify trial offers, coupons, credits and special promotional offers at OnTrackCBT’s sole discretion. Any trial offer associated with the Service entitles new users to a one-time free trial usage period.
5 Goods and Services Tax (GST)
a) If GST is payable on a Taxable Supply made under, by reference to or connection with these terms and conditions, the party providing the Consideration for that Taxable Supply must also pay the GST Amount as additional Consideration. This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly stated to be GST inclusive.
b) Any reference in the calculation of Consideration under these terms and conditions to a cost, expense or other liability incurred by a party, must exclude the amount of any Input Tax Credit entitlement of that party in relation to the relevant cost, expense or other liability.
6 Delivery
a) Delivery times quoted by ADG are estimates only and ADG may extend delivery times. Any delay caused by circumstances beyond the reasonable control of ADG shall not be grounds for cancellation by the Customer or for any claim for damages or compensation by the Customer.
b) Delivery of Services is deemed to take place on completion of the provision of the Services to the Customer by ADG.
7 Use and Delivery of Services
a) Domain Names. OnTrackCBT shall be responsible to register all domains associated with the Service.
b) IP Addressing. The Customer shall not change, redirect, modify, delete, or disable the IP addresses set up by OnTrackCBT on their systems, without the express approval of OnTrackCBT. If Customer breaches this clause, OnTrackCBT shall have the right to suspend or terminate the Service immediately without notice to the Customer. The Customer shall keep OnTrackCBT fully indemnified from and against all costs, claims, liabilities, and demands, relating to any breach of this clause.
c) Responsibility for User Accounts and Passwords. Customer is responsible for maintaining the confidentiality of User accounts and passwords. Customer agrees to immediately notify OnTrackCBT of any unauthorized use of Customer account of which customer becomes aware. Otherwise, all guarantees as to service and performance given by OnTrackCBT to the Customer shall be suspended.
d) Customer Only Traffic. The right to use the Service is limited only to the Customer registered Subscribers and their invited attendees and includes those members of staff and others engaged by the Customer to perform work for the Customer.
e) Email. Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is explicitly prohibited. A Subscriber shall not use OnTrackCBT’s mail server to relay mail other than invitations to share its own data without the express permission of OnTrackCBT.
f) Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. OnTrackCBT will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
i) Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
ii) Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
iii) Interference with Service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
iv) Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
g) Improper Use. Services may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
h) Data Protection. To the extent OnTrackCBT receives any personal information in a Subscriber database, Customer grants OnTrackCBT permission and will ensure that it has received the permission of each Subscriber to transfer, process or store such personal information in our databases.
8 Cancellation or Variation
a) An order may not be cancelled by the Customer once one of the intention to purchase methods in has been received.
b) Variation is permitted only if the variation conforms with Clause 4d and this clauses’ sub-clauses, and is accepted by ADG in writing. Any such cancellation or variation shall only occur on terms which will provide for ADG to be compensated by the Customer against any costs or loss (including but not limited to loss of profit) incurred.
9 Title and Licence
a) The Customer acknowledges and agrees that all rights in all copyright, designs, patents and trade marks existing in relation to the Products or Services are reserved to the owner of those rights.
b) ADG licenses computer software incorporated within any Products or sold to the Customer for the Customer’s use only.
10 Limitation of Liability
To the extent permitted by law, ADG performs this contract under the following conditions:
a) ADG shall not be responsible for any misinformation provided to it by the Customer or any third party.
b) ADG limits its liability for any loss or damages attributable to the provision of its services to the delivery of the relevant services again or payment for the relevant services to be provided again; and
c) In particular, ADG shall not be liable for any direct or consequential Loss or Damage including without limitation, direct or indirect damages for personal injury, loss of business profit, business interruption, loss of business information or any other pecuniary loss arising out of the use of the recommendations and solutions provided under this agreement.
d) Further, the Customer agrees that it may only take action against ADG for Loss or Damage, such that if any of: ADG’s employees, directors, sub-contractors and agents; its sub-contractors’ and agents’ employees, directors, sub-contractors and agents; and so on down the line, would be liable as well as ADG for any Loss or Damage, action will not be taken by the Customer against such person or entity.
e) The Customer shall indemnify ADG and hold ADG harmless from and against any and all actions, claims, proceedings or demands which may be brought or made against it or them or any of them in respect of any loss, injury, or damage arising out of these terms and conditions by ADG or any negligent act or omission of ADG and from and against all damages, costs and expenses incurred in defending or settling any action, claim, proceeding or demand arising from such breach, act or omission unless such claims result from acts of ADG, its employees, contractors or agents which constitute willful and serious misconduct.
f) For the purpose of the indemnity above, ADG includes: ADG Pty Ltd; its employees, directors, sub-contractors and agents; its sub-contractors’ and agents’ employees, directors, sub-contractors and agents; and so on down the line.
11 Warranty
a) OnTrackCBT’s exclusive warranty is that, Service will be provided in a professonal and workmanlike manner and will conform to OnTrackCBT’s applicable published specifications. OnTrackCBT does not warrant that the operation of Service will be uninterrupted or error free. This warranty extends only to the Customer, and may not be assigned to a third party.
b) OnTrackCBT express warranty is contingent upon the proper use of the Service in accordance with OnTrackCBT specifications and instructions. The warranty does not apply to Service failure due to:
i) disaster, accident or misuse by Customer;
ii) failure or defect of electrical power or external circuitry
iii) Customer’s inability or difficulty to connect to the Internet.
c) EXCEPT AS EXPRESSLY STATED IN THIS SECTION 11, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF SERVICES SOLD OR FURNISHED UNDER THIS AGREEMENT OR IN CONNECTION HEREWITH. ONTRACKCBT DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ONTRACKCBT’S EXPRESS WARRANTIES WILL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY WILL ARISE OUT OF, ONTRACKCBT RENDERING TECHNICAL OR OTHER ADVICE IN CONNECTION WITH THE SERVICE. IN NO EVENT WILL ONTRACKCBT
12 Limitation of Liability
a) EXCEPT AS PROVIDED HEREIN OR IN SECTION 11, ONTRACKCBT’S MAXIMUM LIABILITY WILL BE LIMITED IN ANY EVENT TO ACTUAL DIRECT DAMAGES TO THE EXTENT CAUSED SOLELY BY THE ACTS OR OMISSIONS OF ONTRACKCBT SUBJECT TO A MAXIMUM LIABILITY OF THE LESSER OF $5,000 OR THE AMOUNT PAID FOR THE SPECIFIC SERVICE WHICH DIRECTLY CAUSED SUCH DAMAGE. IN NO EVENT WILL ONTRACKCBT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF ONTRACKCBT HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME. NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.
13 Force Majeure
a) OnTrackCBT shall not be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, explosion, earthquake, war, strike, embargo, government requirement, civil or military authority, act of God, internet traffic congestion, or other similar causes beyond its control and without the fault of negligence of OnTrackCBT or its subcontractors.
14 Support
a) Unless otherwise provided in any Service description, Services will be provided during the Subscription Period, from 9:00 a.m. through 5:00 p.m. East Australian Time by email, telephone or the web, Monday through Friday, exclusive of Australian and Queensland Public holidays, which is subject to change in OnTrackCBT’s sole discretion with 30 days notice.
15 Confidentiality
a) ADG, its agents, or subcontractors shall not divulge confidential Customer information associated with any Services provided to any third party, without the Customer’s consent. However, ADG shall bear no responsibility for disclosure where such information or data is publicly available, is already in the possession of ADG, known to ADG, is obtained by ADG from a third party, or where disclosure is required by law.
16 General Provisions
a) The laws of the State of Queensland, Australia shall govern this Contract.
b) This Contract is the entire agreement between the Customer and ADG and no representation or statement not expressly contained in this contract or incorporated herein by reference, shall be binding on either party.
