WEBSITE TERMS AND CONDITIONS OF USE
1. About the Website
(a) Welcome to www.braincipher.com (the 'Website'). The Website provides online
courses on various subjects (the 'Services').
(b) The Website is operated by Braincipher (ABN 60 522 540 177). Access to and
use of the Website, or any of its associated Products or Services, is provided by
Braincipher. Please read these terms and conditions (the 'Terms') carefully. By
using, browsing and/or reading the Website, this signifies that you have read,
understood and agree to be bound by the Terms. If you do not agree with the
Terms, you must cease usage of the Website, or any of Services, immediately.
(c) Braincipher reserves the right to review and change any of the Terms by updating
this page at its sole discretion. When Braincipher updates the Terms, it will use
reasonable endeavours to provide you with notice of updates to the Terms. Any
changes to the Terms take immediate effect from the date of their publication.
Before you continue, we recommend you keep a copy of the Terms for your
records.
2. Acceptance of the Terms
You accept the Terms by remaining on the Website. You may also accept the Terms by
clicking to accept or agree to the Terms where this option is made available to you by
Braincipher in the user interface.
3. Subscription to use the Services
(a) In order to access the Services, you must first purchase a subscription through the
Website (the 'Subscription') and pay the applicable fee for the selected
Subscription (the 'Subscription Fee').
(b) In purchasing the Subscription, you acknowledge and agree that it is your
responsibility to ensure that the Subscription you elect to purchase is suitable for
your use.
(c) Once you have purchased the Subscription, you will then be required to register
for an account through the Website before you can access the Services (the '
Account').
(d) As part of the registration process, or as part of your continued use of the
Services, you may be required to provide personal information about yourself
(such as identification or contact details), including:
(i) Email address
(ii) Preferred username
(iii) Mailing address
(iv) Telephone number
(v) Password
(vi) Country of Residence
(e) You warrant that any information you give to Braincipher in the course of
completing the registration process will always be accurate, correct and up to
date.
(f) Once you have completed the registration process, you will be a registered
member of the Website ('Member') and agree to be bound by the Terms. As a
Member you will be granted immediate access to the Services from the time you
have completed the registration process until the subscription period expires (the
'Subscription Period').
(g) You may not use the Services and may not accept the Terms if:
(i) you are not of legal age to form a binding contract with Braincipher; or
(ii) you are a person barred from receiving the Services under the laws of
Australia or other countries including the country in which you are resident
or from which you use the Services.
4. Your obligations as a Member
As a Member, you agree to comply with the following:
(a) you will use the Services only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines
in the relevant jurisdictions;
(b) you have the sole responsibility for protecting the confidentiality of your password
and/or email address. Use of your password by any other person may result in the
immediate cancellation of the Services;
(c) any use of your registration information by any other person, or third parties, is
strictly prohibited. You agree to immediately notify Braincipher of any unauthorised
use of your password or email address or any breach of security of which you
have become aware;
(d) access and use of the Website is limited, non-transferable and allows for the sole
use of the Website by you for the purposes of Braincipher providing the Services;
(e) you will not use the Services or the Website in connection with any commercial
endeavours except those that are specifically endorsed or approved by the
management of Braincipher;
(f) you will not use the Services or Website for any illegal and/or unauthorised use
which includes collecting email addresses of Members by electronic or other
means for the purpose of sending unsolicited email or unauthorised framing of or
linking to the Website;
(g) you agree that commercial advertisements, affiliate links, and other forms of
solicitation may be removed from the Website without notice and may result in
termination of the Services. Appropriate legal action will be taken by Braincipher
for any illegal or unauthorised use of the Website; and
(h) you acknowledge and agree that any automated use of the Website or its Services
is prohibited.
5. Payment
(a) Where the option is given to you, you may make payment of the Subscription Fee
by way of:
(i) Credit Card Payment ('Credit Card')
(ii) PayPal ('PayPal')
(b) All payments made in the course of your use of the Services are made using
Stripe or PayPal. In using the Website, the Services or when making any payment
in relation to your use of the Services, you warrant that you have read, understood
and agree to be bound by the Stripe or PayPal terms and conditions which are
available on their website.
(c) You acknowledge and agree that where a request for the payment of the
Subscription Fee is returned or denied, for whatever reason, by your financial
institution or is unpaid by you for any other reason, then you are liable for any
costs, including banking fees and charges, associated with the Subscription Fee.
(d) You agree and acknowledge that Braincipher can vary the Subscription Fee at any
time and that the varied Subscription Fee will come into effect following the
conclusion of the existing Subscription Period.
6. Refund Policy
Braincipher will only provide you with a refund of the Subscription Fee in the event they
are unable to continue to provide the Services or if the manager of Braincipher makes a
decision, at its absolute discretion, that it is reasonable to do so under the circumstances.
Where this occurs, the refund will be in the proportional amount of the Subscription Fee
that remains unused by the Member (the 'Refund').
7. Copyright and Intellectual Property
(a) The Website, the Services and all of the related products of Braincipher are
subject to copyright. The material on the Website is protected by copyright under
the laws of Australia and through international treaties. Unless otherwise indicated,
all rights (including copyright) in the Services and compilation of the Website
(including but not limited to text, graphics, logos, button icons, video images, audio
clips, Website, code, scripts, design elements and interactive features) or the
Services are owned or controlled for these purposes and are reserved by
Braincipher or its contributors.
(b) All trademarks, service marks and trade names are owned, registered and/or
licensed by Braincipher, who grants to you a worldwide, non-exclusive, royalty-free,
revocable license whilst you are a Member to:
Braincipher does not grant you any other rights whatsoever in relation to the
Website or the Services. All other rights are expressly reserved by Braincipher.
(i) use the Website pursuant to the Terms;
(ii) copy and store the Website and the material contained in the Website in
your device's cache memory; and
(iii) print pages from the Website for your own personal and non-commercial
use.
(c) Braincipher retains all rights, title and interest in and to the Website and all related
Services. Nothing you do on or in relation to the Website will transfer any:
to you.
(i) business name, trading name, domain name, trademark, industrial design,
patent, registered design or copyright, or
(ii) a right to use or exploit a business name, trading name, domain name,
trademark or industrial design, or
(iii) a thing, system or process that is the subject of a patent, registered design
or copyright (or an adaptation or modification of such a thing, system or
process),
(d) You may not, without the prior written permission of Braincipher and the
permission of any other relevant rights owners: broadcast, republish, up-load to a
third party, transmit, post, distribute, show or play in public, adapt or change in any
way the Services or third-party services for any purpose, unless otherwise
provided by these Terms. This prohibition does not extend to materials on the
Website, which are freely available for re-use or are in the public domain.
8. Privacy
Braincipher takes your privacy seriously and any information provided through your use
of the Website and/or Services are subject to Braincipher's Privacy Policy, which is
available on the Website.
9. General Disclaimer
(a) Nothing in the Terms limits or excludes any guarantees, warranties,
representations or conditions implied or imposed by law, including the Australian
Consumer Law (or any liability under them) which by law may not be limited or
excluded.
(b) Subject to this clause, and to the extent permitted by law:
(i) all terms, guarantees, warranties, representations or conditions which are
not expressly stated in the Terms are excluded; and
(ii) Braincipher will not be liable for any special, indirect or consequential loss
or damage (unless such loss or damage is reasonably foreseeable
resulting from our failure to meet an applicable Consumer Guarantee), loss
of profit or opportunity, or damage to goodwill arising out of or in
connection with the Services or these Terms (including as a result of not
being able to use the Services or the late supply of the Services), whether
at common law, under contract, tort (including negligence), in equity,
pursuant to statute or otherwise.
(c) Use of the Website and the Services is at your own risk. Everything on the Website
and the Services is provided to you "as is" and "as available" without warranty or
condition of any kind. None of the affiliates, directors, officers, employees, agents,
contributors and licensors of Braincipher make any express or implied
representation or warranty about the Services or any products or Services
(including the products or Services of Braincipher) referred to on the Website.
includes (but is not restricted to) loss or damage you might suffer as a result of
any of the following:
(i) failure of performance, error, omission, interruption, deletion, defect, failure
to correct defects, delay in operation or transmission, computer virus or
other harmful components, loss of data, communication line failure, unlawful
third party conduct, or theft, destruction, alteration or unauthorised access
to records;
(ii) the accuracy, suitability or currency of any information on the Website, the
Services, or any of its Services related products (including third party
material and advertisements on the Website);
(iii) costs incurred as a result of you using the Website, the Services or any of
the products of Braincipher; and
(iv) the Services or operation in respect to links which are provided for your
convenience.
10. Education Services
(a) By using our services, you agree that Braincipher is not to be held liable for any
decisions you make based on any of our services or guidance and any
consequences, as a result, are your own. Under no circumstances can you hold
Braincipher liable for any actions you take nor can you hold us or any of our
employees liable for any loss or costs incurred by you as a result of any guidance,
advice, coaching, materials or techniques used or provided by Braincipher.
(b) All our information on both the website and in consultations is intended to assist
you and does not in any way, nor is it intended to substitute professional, financial
or legal advice. Results are not guaranteed and Braincipher takes no responsibility
for your actions, choices or decisions.
11. Limitation of liability
(a) Braincipher's total liability arising out of or in connection with the Services or these
Terms, however arising, including under contract, tort (including negligence), in
equity, under statute or otherwise, will not exceed the resupply of the Services to
you.
(b) You expressly understand and agree that Braincipher, its affiliates, employees,
agents, contributors and licensors shall not be liable to you for any direct, indirect,
incidental, special consequential or exemplary damages which may be incurred by
you, however caused and under any theory of liability. This shall include, but is not
limited to, any loss of profit (whether incurred directly or indirectly), any loss of
goodwill or business reputation and any other intangible loss.
12. Termination of Contract
(a) The Terms will continue to apply until terminated by either you or by Braincipher as
set out below.
(b) If you want to terminate the Terms, you may do so by:
Your notice should be sent, in writing, to Braincipher via the 'Contact Us' link on
our homepage.
(i) providing Braincipher with 14 business days' notice of your intention to
terminate; and
(ii) closing your accounts for all of the services which you use, where
Braincipher has made this option available to you.
(c) Braincipher may at any time, terminate the Terms with you if:
(i) you have breached any provision of the Terms or intend to breach any
provision;
(ii) Braincipher is required to do so by law;
(iii) the provision of the Services to you by Braincipher is, in the opinion of
Braincipher, no longer commercially viable.
(d) Subject to local applicable laws, Braincipher reserves the right to discontinue or
cancel your membership at any time and may suspend or deny, in its sole
discretion, your access to all or any portion of the Website or the Services without
notice if you breach any provision of the Terms or any applicable law or if your
conduct impacts Braincipher's name or reputation or violates the rights of those of
another party.
13. Indemnity
You agree to indemnify Braincipher, its affiliates, employees, agents, contributors, third
party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage
(including legal fees on a full indemnity basis) incurred, suffered or arising out of
or in connection with Your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the
Website or attempts to do so; and/or
(c) any breach of the Terms.
14. Dispute Resolution
14.1. Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence
any Tribunal or Court proceedings in relation to the dispute, unless the following
clauses have been complied with (except where urgent interlocutory relief is
sought).
14.2. Notice:
A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms,
must give written notice to the other party detailing the nature of the dispute, the
desired outcome and the action required to settle the Dispute.
14.3. Resolution:
On receipt of that notice ('Notice') by that other party, the parties to the Terms
('Parties') must:
(a) Within 28 business days of the Notice endeavour in good faith to resolve
the Dispute expeditiously by negotiation or such other means upon which
they may mutually agree;
(b) If for any reason whatsoever, 14 business days after the date of the Notice,
the Dispute has not been resolved, the Parties must either agree upon
selection of a mediator or request that an appropriate mediator be
appointed by the President of the Braincipher or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a
mediator and the cost of the venue of the mediation and without limiting the
foregoing undertake to pay any amounts requested by the mediator as a
pre-condition to the mediation commencing. The Parties must each pay
their own costs associated with the mediation;
(d) The mediation will be held in Melbourne, Australia.
14.4. Confidential:
All communications concerning negotiations made by the Parties arising out of and
in connection with this dispute resolution clause are confidential and to the extent
possible, must be treated as "without prejudice" negotiations for the purpose of
applicable laws of evidence.
14.5. Termination of Mediation:
If 28 business days have elapsed after the start of a mediation of the Dispute and
the Dispute has not been resolved, either Party may ask the mediator to terminate
the mediation and the mediator must do so.
15. Venue and Jurisdiction
The Services offered by Braincipher is intended to be viewed by residents of Australia. In
the event of any dispute arising out of or in relation to the Website, you agree that the
exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.
16. Governing Law
The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy,
proceeding or claim of whatever nature arising out of or in any way relating to the Terms
and the rights created hereby shall be governed, interpreted and construed by, under
and pursuant to the laws of Victoria, Australia, without reference to conflict of law
principles, notwithstanding mandatory rules. The validity of this governing law clause is
not contested. The Terms shall be binding to the benefit of the parties hereto and their
successors and assigns.
17. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable
and both parties having taken the opportunity to obtain independent legal advice and
declare the Terms are not against public policy on the grounds of inequality or bargaining
power or general grounds of restraint of trade.
18. Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent
jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
Approved by:
A. H. Wijesinghe / Co-Founder of Braincipher
Date: 18/04/2021
