Website Terms of Use
1.0 Background
1.1 The Client wishes to make us of the Company's Website.
1.2 The Company agrees to allow the Client to access the Website on the Terms Of Use.
2.0 Defined terms
2.1 Affiliate means:
2.1.1 a Related Body Corporate of the party; or
2.1.2 an entity (including a natural person) which the party controls (within the meaning of section 50AA of the Corporations Act).
2.2 Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
2.3 Client means the entity (including a natural person) acessing or using the Website.
2.4 Website means Dan de Vries, accessible from accessible from https://www.dandevries.com/
2.5 Company means de Freece Pty Ltd trading as DdV Coaching, ABN 13 662 558 429.
2.6 Third-party Social Media Service means means any services or content (including data, information, products or services) provided by a third-party that may be displayed, included or made available by the Website.
2.7 Confidential Information means all information, ideas, concepts, data, know-how and trade secrets (whether or not in a material form) regarding the Company, the Group or any of its businesses, products or services, which is disclosed to the Client, or which is otherwise made known to the Client, or is generated by the Company in the course of the Company’s engagement with the Client, except where that information is or comes into the public domain otherwise than through the Client's breach of the terms set out herein.
2.8 Device means means any device that can access the Website such as a computer, a cellphone or a digital tablet.
2.9 Corporations Act means the Corporations Act 2001 (Cth).
2.10 Group means means the Company and its Related Bodies Corporate.
2.11 Intellectual Property Rights means all present and future intellectual or industrial property rights anywhere in the world, including without limitation any copyright, moral right, patent, trade mark, registered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semi-conductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right or right of registration of such rights.
2.12 Materials means any methodologies, ideas, processes, documents, software, reports, diagrams, concepts, techniques, know-how and any other material created, developed, modified or adapted by the Client during the course of use of the Website or in connection with its engagement with the Company.
2.13 Related Body Corporate has the meaning given to that term by section 9 Corporations Act.
2.14 Terms Of Use means these terms as amended from time to time, available at https://www.dandevries.com/terms-of-use/
2.15 Tax means means a tax, levy, duty, charge, deduction or withholding (including GST), however it is described, that is imposed by law or by a government agency, together with any related interest, penalty, fine or other charge.
3.0 Interpretation
3.1 In these terms:
3.1.1 a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, these terms and references to these terms include any schedules or annexures;
3.1.2 a reference to a party to these terms or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
3.1.3 if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
3.1.4 a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;
3.1.5 a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
3.1.6 if any day on or by which a person must do something under these terms is not a Business Day, then the person must do it on or by the next Business Day;
3.1.7 a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
3.1.8 the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, or ‘for example’ (or similar phrases) do not limit what else might be included.
4.0 Acknowledgement
4.1 These are the Terms Of Use governing the use of this Website and the agreement that operates between the Client and the Company.
4.2 These Terms Of Use set out the rights and obligations of all users regarding the use of the Website.
4.3 The Client's access to and use of the Website is conditioned on the Client's acceptance of and compliance with these Terms Of Use.
4.4 These Terms Of Use apply to all visitors, users and others who access or use the Website.
4.5 By accessing or using the Website the Client agrees to be bound by these Terms Of Use.
4.6 If the Client disagrees with any part of these Terms Of Use then the Client may not access the Website.
4.7 The Client represents that they are over the age of 18. The Company does not permit those under 18 to use the Website.
4.8 Client access to and use of the Website is also conditioned on the Client's acceptance of and compliance with the Privacy Policy of the Company. Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Client personal information when the Client uses the Website and informs the Client about their privacy rights and how the law protects them. Please read Our Privacy Policy carefully before using the Website. The company's Privacy Policy is available at https://www.dandevries.com/privacy/
5.0 Links to Other Web Sites
5.1 The Company's Website may contain links to third-party web sites or services that are not owned or controlled by the Company.
5.2 The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services.
5.3 The Client further acknowledges and agrees that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.
5.4 The Company strongly advises the Client to read the terms and conditions and privacy policies of any third-party web sites or services that they visit.
6.0 Termination
6.1 The Company may terminate or suspend Client access immediately, without prior notice or liability, for any reason whatsoever, including without limitation if the Client breaches these Terms Of Use.
6.2 Upon termination, the Client's right to use the Website will cease immediately.
7.0 Limitation of Liability
7.1 Notwithstanding any damages that the Client might incur, the entire liability of the Company and any of its suppliers under any provision of tese Terms and the Client's exclusive remedy for all of the foregoing shall be limited to the amount actually paid through the Website or 100 AUD if no purchase has been made through the Website.
7.2 To the maximum extent permitted by applicable law, in no event shall the Company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Website, third-party software and/or third-party hardware used with the Website, or otherwise in connection with any provision of these Terms Of Use), even if the Company or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
7.3 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these states, each party's liability will be limited to the greatest extent permitted by law.
8.0 "AS IS" and "AS AVAILABLE" Disclaimer
8.1 The Website is provided to the Client "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind.
8.2 To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Website, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.
8.3 Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Website will meet thee Client's requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
8.4 Without limiting the foregoing, neither the Company nor any of the company's provider makes any representation or warranty of any kind, express or implied:
8.4.1 as to the operation or availability of the Website, or the information, content, and materials or products included thereon;
8.4.2 that the Website will be uninterrupted or error-free;
8.4.3 as to the accuracy, reliability, or currency of any information or content provided through the Website; or
8.4.4 that the Website, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
8.5 Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to the Client. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.
9.0 Intellectual property
9.1 For Material produced in the delivery of the Website, the Company:
9.1.1 will own all rights, including Intellectual Property Rights, in and to the Materials produced, regardless of whether the rights arise during or after the Term.
9.1.2 grants the Client a non-exclusive, royalty-free, revocable, non-transferable and perpetual licence to use any Materials produced as part of use of the Website for any purpose in connection with the business activities of the Client.
9.2 The Client warrants to the best of their knowledge and belief after making all reasonable enquiries, that the use by the Company of any Materials delivered by the Company in the course of use of the Website will not infringe any Intellectual Property Rights of any person nor give rise to any liability to make royalty or other payments to any person.
9.3 The Client indemnifies the Company against all loss, liabilities, demands and Taxes arising from any infringement or alleged infringement of any Intellectual Property Rights by:
9.3.1 the use by the Company of any Client Materials supplied in the course of the Client's use of the Website; or
9.3.2 any conduct of the Client in the course of acessing the Website.
9.4 The Client has obligations under this clause continue after the Company terminates Client access to the Website.
10.0 Not Used
11.0 Indemnity
11.1 The Client indemnifies the Company and the Group and their employees, officers and agents against and must pay each relevant party on demand the amount of all losses and liabilities incurred as a result of:
11.1.1 any breach of any term of these Terms Of Use by the Client or a breach of any express or implied warranty given by the Client;
11.1.2 any unlawful or negligent act or omission by the Client during use of the Website by the Client;
11.1.3 any misuse or disclosure of Confidential Information by the Client; or
11.1.4 any infringement by the Client of any Intellectual Property Rights.
11.2 The indemnity in this clause 11 is reduced to the extent that the loss or liability is directly contributed to or caused by the Company, its employees or contractors.
11.3 The total liability of the Company, will in all circumstances be limited in the aggregate to the total amount paid by the Client through the Website.
12.0 Disputes
12.1 If a dispute arises about the Client's use of the Website, the matter should initially be discussed between an officer nominated by the Company and the Client.
12.2 If the parties do not resolve the dispute within 14 days and no other process for resolution is agreed, the parties may agree to refer the dispute to mediation.
12.3 The mediator will be appointed by agreement of the parties or, failing agreement, by the person nominated by the Chairman of the Australian Commercial Disputes Centre (the ACDC). The Dispute is to be mediated in accordance with the ACDC Mediation Guidelines.
12.4 The mediator’s role is to assist the parties to resolve the dispute by negotiation. The mediator will have no decision-making powers, nor will the mediator make formal recommendations.
12.5 The costs of mediation will be borne equally by the parties unless otherwise agreed.
12.6 Any right that a person may have under this clause is in addition to, and does not replace or limit, any other right that the person may have.
13.0 Legal and financial advice
13.1 The Client warrants by accepting these terms by using the Website that the Client has had the opportunity to obtain and/or has obtained independent legal and financial advice on the terms and conditions of the agreement set out in these Terms Of Use.
14.0 Amendments
14.1 The Company reserves the right, at its sole discretion, to modify or replace these Terms Of Use at any time.
14.2 If a revision is material the Company will make reasonable efforts to provide at least 30 days' notice prior to any new terms taking effect.
14.3 What constitutes a material change will be determined at the Company's sole discretion.
14.4 By continuing to access or use the Website after those revisions become effective, the Client agree to be bound by the revised terms.
14.5 If the Client does not agree to the new terms, in whole or in part, stop using the Website.
15.0 Assignments
15.1 The Client may only assign these terms or a right under these terms with the written consent of the Company.
16.0 No merger
16.1 The rights and obligations of the parties under these terms do not merge on completion of any transaction contemplated by the agreement.
17.0 Entire agreement
17.1 These terms supersedes all previous agreements about its subject matter.
17.2 The Terms Of Use embody the entire agreement between the parties.
17.2 To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in these terms.
17.3 Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into the agreement to use the Website.
18.0 Further assurances
18.1 The Client must do all things reasonably necessary to give effect to these Terms of Use.
19.0 Governing law and jurisdiction
19.1 Queensland law governs these terms.
19.2 Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts.
20.0 No waiver
20.1 The failure of a party to require full or partial performance of a provision of these Terms Of Use does not affect the right of that party to require performance subsequently.
20.2 A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
20.3 A right under these Terms Of Use may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
21.0 Severability
21.1 A clause or part of a clause of these terms that is illegal or unenforceable may be severed from these terms and the remaining clauses or parts of the clause of these terms continue in force.
21.2 If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from these terms in the relevant jurisdiction, but the rest of these terms will not be affected.
22.0 Translation
22.1 These Terms of Use may have been translated if the Company have made them available to the Client through the Website.
22.2 The Client agrees that the original English text shall prevail in the case of a dispute.
23.0 Operation of indemnities
23.1 Each indemnity in these terms survives the expiry or termination of these Terms Of Use.
23.2 A party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given.
24.0 Notice
24.1 A notice, consent or communication under these terms is only effective if it is:
24.1.1 in writing in English, signed by or on behalf of the person giving it;
24.1.2 addressed to the person to whom it is to be given; and
24.1.3 given as follows:
24.1.3.1 delivered by hand to that person’s address; or
24.1.3.2 sent to that person’s address by prepaid mail or by prepaid airmail, if the address is overseas; or
24.1.3.3 sent by email to that person’s email address.
24.2 A notice, consent or communication given under clause 24.1 is given and received on the corresponding day set out below. The time expressed is the local time in the place of receipt.
24.2.1 If delivered by hand:
24.2.1.1 That day, if delivered by 5.00pm on a Business Day; or
24.2.1.2 The next Business Day, in any other case.
24.2.2 If delivered via email:
24.2.2.1 At the time of departure from the sender’s mail server unless the sender receives an automated message generated by the recipient’s mail server (Failure Message) that the email has not been delivered within two hours. For the avoidance of doubt any response generated by or at the instigation of the recipient (including an ‘out of office’ message) will not be a Failure Message.
24.2.3 If sent via post:
24.2.3.1 Three Business Days after posting, if sent within Australia; or
24.2.3.2 Seven Business Days after posting, if sent to or from a place outside Australia.
24.3 A person’s address and email address are those set out in the associated Service Agreement, or as the person otherwise notifies the sender.
Version 1.0 - last updated 21 July 2024
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