Terms of Use

David Cherry and Associates Pty. Ltd. Terms of Use

1. Terms of Use

1.1 The website located at www.davidcherry.com.au is owned and operated by David Cherry & Associates ACN 007 083 230 (DCA).

1.2 By using the Website you agree to be bound by the terms and conditions set out below (Terms of Use).

1.3 In these Terms of Use, a reference to "we" or "us" is a reference to DCA.

1.4 A reference to "you" or "your" in these Terms of Use is a reference to any person accessing, viewing or using the Website.

The Terms of Use also incorporate and include the following:

a) DCA Privacy Policy and (b) DCA Collection Notice

2. Use of the Website

2.1 The Website provides strategies and tools to assist in the teaching and learning of certain topics (the Services).

2.2 You may access the Website at any time, unless we have restricted access to perform maintenance, updates or upgrades. Your ability to access the Website will otherwise depend on factors outside our control and we do not accept any responsibility for those factors such as the quality of your internet connection, type of computer or mobile device or software.

2.3 You acknowledge that you have no rights in, or to, the Website or technology used to support the Website, other than the right to use the Website in accordance with the Terms of Use.

2.4 You agree to provide accurate and complete information to us.

2.5 You warrant and agree that you will keep your username and password (your Account) confidential and secure and to ensure there is no unauthorised access to your Account.

2.6 We take no responsibility for any error, omission or cost arising from your use of the Services which is caused by your failure or delay to provide accurate and complete information to us.

2.7 We reserve the right to accept, cancel or reject your access to the Website for any reason.

3. Australian Consumer Laws

3.1 We acknowledge that under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (Cth)), certain statutory expressed and implied guarantees and warranties may be implied into these Terms of Use (Non-Excluded Guarantees). Nothing in these Terms of Use purports to modify or exclude the Non-Excluded Guarantees.

3.2    To the maximum extent permitted at law, the liability of DCA and our committee of management, officers, employees, agents, contractors, service providers, successors or assigns, for a failure to comply with a Non-Excluded Guarantee, is limited to, at DCA’s option:

(a)  resupplying the Services; or

(b)  the cancellation of the Services and refund of any amounts paid.

3.3    In circumstances where the Non-Excluded Guarantees do not apply, we and our committee of management, officers, employees, agents, contractors, service providers, successors or assigns exclude liability for any loss or damage whatsoever (including but not limited to direct, indirect, incidental, special, consequential or exemplary damages) you may suffer arising out of, or in any way related to, use of the Services or our cancellation of the Services.

3.4    You acknowledge that you do not rely on our skill or judgment when deciding whether or not the Services are fit for any particular purpose.

4. Limitations on Use

4.1 By accessing and using the Website you warrant and agree that you will not:

(a)    use the Website for any purpose other than provided for under these Terms of Use;

(b)    use the Website or Services for any commercial purpose without our prior written consent;

(c) copy, transmit, distribute, reproduce, licence, alter, reverse engineer, adapt or modify the whole or any part of the Website or Services in any way whatsoever;

(d)    hide, deface, alter or delete any copyright symbol, trade mark or other proprietary rights notice;

(e)    use the Website for any activity which is obscene, indecent, offensive or defamatory;

(f)  hack into, change or otherwise knowingly transmit a virus or otherwise damage the Website or any information contained within it;

(g)    tamper with, hinder the operation of or make unauthorised modifications to the Website;

(h)    use the Website with an incompatible or unauthorised device;

(i)  upload any material onto the Website, or use the Website in any way which:

(i) infringes the intellectual property rights of any person; or

(ii) is unlawful or violates any law;

(j)  breach any other terms of the Terms of Use, our Privacy Policy or our Privacy Collection Notice.

5. Technical information and Security

5.1    The transmission of data over the internet is not always secure. Although we endeavour to secure the Website, you access it at your own risk and we accept no responsibility for any interference, loss, damage, or disruption to your computer or mobile device or otherwise, which arises in connection with your use of the Website.

5.2    You acknowledge that it is your responsibility to:

(a)    implement sufficient procedures and virus checks (including anti-virus and other security checks) to satisfy your particular requirements for the accuracy of data input and output; and

(b)    ensure that whatever you select for your use in the Website is free of viruses or anything else that may interfere with or damage the operations of your computer or mobile device.

5.3    We do not warrant that functions available on the Website will be uninterrupted or error free, free of viruses or programming bugs or interferences due to factors outside our control.

6. Intellectual Property

6.1    The Website contains intellectual property including trade marks, confidential information and copyright, together with any goodwill, reputation and intellectual property rights subsisting in those things.

6.2    You should assume that any intellectual property in the Website is owned by DCA or third parties and unless permitted by law, you must not:

(a) adapt, reproduce, store, distribute, transmit, print, display, perform, publish or create derivative works from any part of the Website; or

(b) commercialise any information, products or services obtained from any part of the Website.

7. Third Party Websites

7.1    The Website may contain links to websites owned and operated by third parties. We are not responsible for the operation, security levels, content or any other aspect of any third party websites.

7.2    Links to third party websites are provided solely for your convenience and do not indicate our endorsement or affiliation of them or their products and services.

7.3    We make no representations or warranties and are not liable for:

(a) the content or accuracy of any information contained in linked websites and third party websites; and

(b) any loss or damage suffered as a result of access to, or use of, these third party websites, or the reliance on the information contained within.

7.4    You must make your own enquires as to the suitability of the content of third party websites and the goods and services available for sale on them.

7.5    Third party websites may be governed by their own terms and conditions (including their privacy policy), which will apply to your use and acquisition of their products or services. Accordingly, we strongly recommend that you read their terms and conditions.

8. Content Standards

8.1    These content standards apply to any and all material that you contribute to our Website (Contribution), and to any interactive services associated with it.

8.2    By uploading, transmitting, posting or otherwise making any Contribution you:

(a) grant us a non-exclusive, worldwide, royalty-free, perpetual, licence to use, reproduce, edit and/or exploit such Contribution for any commercial or non-commercial purpose;

(b) warrant that the Contribution is accurate (where you state fact); is genuinely held (where they state opinions); and complies with any applicable law in Australia; and

(c) you give your unconditional and irrevocable consent to any act by us which would otherwise, but for your consent, infringe your moral rights (as defined by the Copyright Act 1968) which you may have in respect of your Contribution.

8.3    We reserve the right (but have no obligation) to:

(a) prevent the upload, transmission, posting or otherwise making available of any Contribution from a user of the Website;

(b) review, modify, reformat, reject or remove any Contribution uploaded, posted, transmitted or otherwise made available through the Website that, in our opinion, violates these Terms of Use or otherwise has the potential to harm, endanger or violate the rights of any person; and

(c) monitor the use of the Website, and store or disclose any information that we collect, including in order to investigate compliance with these Terms of Use or for the purposes of any police investigation or governmental request.

8.4    You agree to accept full responsibility for any Contribution you upload, post, transmit or otherwise make available on the Website and you agree that we will not be liable for any such Contribution uploaded, posted, transmitted or otherwise made available on the Website.

8.5    You acknowledge and agree that any Contribution made by you must not:

(a) contain any material that is defamatory of any person;

(b) contain any material that is obscene, offensive, hateful or inflammatory;

(c) promote sexually explicit material;

(d) promote violence;

(e) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

(f) infringe the intellectual property rights of any person;

(g) be likely to deceive any person;

(h) be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;

(i) promote illegal activity;

(j) be likely to harass, upset, embarrass, alarm or annoy any other person;

(k) be used to impersonate any person, or to misrepresent your identity or affiliation with any person;

(l) give the impression that they emanate from us, if this is not the case;

(m) is unlawful or violates any law; or

(n) contain links or reference to other services or websites.

8.6    By allowing you to upload, post, transmit or otherwise make available your Contribution on the Website, we are not to be taken as having endorsed any opinion, advice or statement made by you.

 

9. Email Notifications

9.1    When you sign-up you agree to us sending you communications via email (Email Notifications). You may choose to stop receiving Email Notifications at any time by clicking the “opt-out” or “unsubscribe” link at the bottom of our Email Notifications.

9.2    If you do not opt-out from Email Notifications, the Website will send emails to your nominated email address and you acknowledge and consent to receipt of those Email Notifications.

 

10. Suspension or Termination

10.1 We reserve the right to suspend or terminate your access to the Website and your Account at our sole discretion if we believe there has been a breach of these Terms of Use.

10.2 In the above instances, we will endeavour to notify you of the breach and ways in which you can remedy it.

10.3 Should you fail to remedy the breach within a reasonable time, you must immediately cease to access your Account and use of the Website.

10.4 We reserve the right to cease operating the Website at any time, without notice, and to terminate this agreement under the Terms of Use.

10.5 You have the right to terminate this agreement under the Terms of Use by ceasing use of the Website.

11. Exclusion of Warranties

11.1 The Services are provided in good faith and we cannot warrant that all users will achieve their desired outcome.

11.2 While we endeavour to ensure the accuracy and completeness of the information contained on the Website and in the Services, that information may contain errors and omissions and is subject to change.

11.3 To the maximum extent permitted at law, we make no representations or warranties of any kind, express or implied, in relation to the content, accuracy, completeness, suitability, accessibility, security or reliability of:

(a) any material and/or information on the Website;

(b) the performance and availability of the Website;

(c) the loss, damage or corruption of any data or other material as a result of the use of the Website.

11.4 Where liability cannot be excluded, any warranty by us in relation to the use of the Website is limited as provided under the Competition and Consumer Act 2010 (Cth).

 

12. Limitation of Liability

12.1 To the maximum extent permitted at law, we and our committee of management, officers, employees, agents, contractors, service providers, successors or assigns exclude liability for any loss or damage whatsoever (including but not limited to direct, indirect, incidental, special, consequential or exemplary damages) you may suffer arising out of, or in any way related to:

(a) the use of, or inability to use, or reliance on, the Services and any of the information or material on the Website;

(b) the use of other third party linked websites;

(c) the unauthorised access of your Account;

(d) the suspension, termination or interruption of the Website in whole or in part for whatever reason;

(e) the loss of profits, loss of opportunity, business interruption or loss or corruption of data or information from the use of the Website.

12.2 Where liability cannot be excluded, any liability incurred by us in relation to the use of the Website or its contents is limited as provided under the Competition and Consumer Act 2010 (Cth).

12.3 You indemnify and agree to keep us indemnified against any loss or damage or costs incurred by us in connection with any breach of the Terms of Use or of any other legal obligation by you or your use of, or conduct on, the Website.

13. Privacy

13.1 You acknowledge that information about you, including information provided upon signing-up and creating an Account will be held by us in accordance with our Privacy Policy

14. General

14.1 We reserve the right to amend, modify, add, delete and make corrections to the Terms of Use at any time and such amendment will be effective immediately upon appearing on the Website. Please ensure that you review these Terms of Use regularly as your continued use of the Services and Website will be deemed acceptance to any variation of the Terms of Use.

14.2 If any part of the Terms of Use are determined to be illegal, invalid or otherwise unenforceable or void that part shall be severed to the extent necessary and the remainder of the Terms of Use shall continue in full force and effect.

14.3 No waiver of any breach of the Terms of Use will be construed as a waiver of any other breach of the Terms of Use.

14.4 We may transfer and/or transfer our rights and obligations under these Terms of Use.

14.5 You may not transfer any of your rights and obligations under these Terms of Use without our prior written consent.

14.6 The Terms of Use are governed by and construed in accordance with the laws of the State of Victoria, Australia and any claim made by either party against the other which in any way arises out of the Terms of Use will be heard in Victoria, Australia and you agree to submit to the jurisdiction of those courts.

14.7 For further information on using the Services, please contact DCA atdavid@davidcherry.com.au.

David Cherry and Associates Pty. Ltd. Collection Notice

 

This collection notice outlines how we (David Cherry & Associates Pty Ltd ACN 007 083 230) (DCA), collect and handle your personal information in compliance with the Privacy Act 1988 (Cth). In this collection notice “we”, “our” and “us” refers to DCA. Further information on how we manage your personal information can be found in our Privacy Policy on our website.

1. Why we collect your personal information and how we will use it

We collect and use your personal information for the purposes of carrying out our business of providing online learning programs and face-to-face workshops and seminars. We use your personal information to tailor our products and services to support your learning and to send you information about our products and services, offers and promotions, updates on your progress and to communicate changes to our services or terms and conditions.

 

2. Circumstances where we collect your personal information and you may not be aware

We use “Cookies” and “Pixel-Tags” to monitor your use of our website. These are small files that are transferred to your computer's hard drive through your web browser and enable our site to recognise your browser and remember certain information. You should be able to configure your computer so that it disables cookies/pixel-tags or does not accept them.

3. Do we collect your personal information from third party sources?

Yes, in the case of a corporate program, seminar or workshop we may collect your personal information from your employer. We do not warrant that these third party sources have the same level of privacy protection as us, and you should review their privacy policies to ensure compliance with the Privacy Act 1988 (Cth).

4. Sensitive Information

We do not currently collect sensitive information and will not do so in the future without first obtaining your written consent.

5. Direct Marketing

We also use your personal information to send you marketing materials and information about our products and services, offers, promotions and materials to support your learning. This includes emailing you our newsletter. We will not use any sensitive information we collect from you for direct marketing without your prior consent.

If you change your mind in the future, you may withdraw your consent by clicking on the “unsubscribe” link on emails or by contacting us at david@davidcherry.com.au.

6. What are the consequences of you not providing your personal information?

It may be difficult for us to provide you with our full range of services. In particular, if you do not provide your full name and email address you will not be able to sign-up to our services.

7. Who we are likely to disclose your personal information to

i. Wyzed Pty. Ltd.  which provides the infrastructure for us to host our website;

ii. The Rocket Science Group LLC, trading as MailChimp, for our email distribution activities;

iii. PayPal Australia Pty Limited, trading as PayPal, to process payments; and

iv. Any other agents we engage to provide services to you.

We will not disclose your sensitive information to any other party.

8. How can you access, update or make a complaint about our handling of your personal information?

By contacting us at david@davidcherry.com.au. Our Privacy Policy contains information on how you can access your information, request changes and make a complaint if you have a concern relating to our handling of your personal information or any breaches of the Australian Privacy Policies. You can access our privacy policy on our website. Alternatively, if you would like a copy sent to you then please request it by contacting us at david@davidcherry.com.au.

9. Disclosure to overseas entities

We disclose our email lists to Rocket Science Group LLC, trading as MailChimp, an email distribution management service. MailChimp may store personal information in data centres located in the United States of America.

Thank you for taking the time to read and complete The Terms and Conditions and the Collection Notice.