Terms and Conditions
Y Train Pty Ltd (ABN 91 084 458 944) (t/as and referred as Skills-Tracker, “we”,”our”,”us” or the “Company”) owns and operates the website http://www.skills-tracker.com and its associated mobile applications (together referred to as “the Website”) to provide end users (referred to as User, “you”, or “your”) with services including but not limited to: providing a centralised place for trainees and apprentices to record their on the job experience online, consolidating weekly work experience entries,
These Terms and Conditions together with the documents referred to within the Terms and Conditions apply to your use of and subscription to the Website and any Skills-Tracker’s Services. By browsing our Website, or using our Services, you acknowledge that you have read and agree to be bound by these Terms and Conditions and they shall constitute an agreement between you and Skills-Tracker.
1.1 In these Terms and Conditions:
Agreement means these Terms and Conditions and other documents the Terms and Conditions refers to;
Business Day means any day other than a Saturday, Sunday, bank holiday or public holiday in New South Wales;
Claim means any claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, and proceeding, right of action, claim for compensation and claim for abatement;
Costs mean any costs, charges, expenses, payments or other expenditures of any nature (whether direct, indirect or consequential and whether accrued or paid);
Data means the information provided, inputted or uploaded to the Website by you;
Deliverables mean customised documents, designs, computer programs, computer documentation and other tangible materials
Fee means the total amount payable in respect of the Subscription of Services pursuant to our Subscription Agreement;
Feedback means any suggestions, enhancement requests, recommendations, comments or other feedback you provided to us;
GST means the Goods and Services Tax;
Liability means liability in or for breach of contract, breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms and Conditions, including, without limitation, liability expressly provided for under these Terms and Conditions or arising by reason of the invalidity or unenforceability of any term of these Terms and Conditions (and for the purposes of this definition, all references to these Terms and Conditions shall be deemed to include any collateral contract);
Skills-Tracker, “we”, “our”, “us” or the “Company” means Y Train Pty Ltd (ABN 91 084 458 944) and its representatives, subsidiaries, affiliates, related parties, officers, directors, employees, agents, partners, and independent contractors.
Software means the hosted software products and related documentation included in the Services and on the Website, and all modifications and/or enhancements to any of the foregoing;
Subscription means the Services and use of the Website you agree to use for a Fee paid to us;
Term means the period that the Agreement remains effect until all Subscriptions granted in accordance with this Agreement have expired or this Agreement is terminated by you or Skills-Tracker;
(a) Headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
(b) Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.
(c) Words denoting persons includes natural persons, partnerships, limited Liability partnerships, bodies corporate and unincorporated associations of persons.
(d) References to includes or including or like words or expressions shall mean without limitation.
2. Registration of account
2.1 To register an account with us, you must follow the instructions and provide required information about yourself. In our absolute discretion, we may refuse to allow any person to register or create an account with us or cancel or suspend any existing account.
2.2 During Registration, you will receive a password which you will be required to change upon notification from us. You must keep the password confidential and immediately notify us if any unauthorised third party becomes aware of that password or if there is any unauthorised use of your email address or any breach of security known to you. You agree that we are not responsible or liable in the event that a person to whom your password is disclosed uses (and/or transacts via) our Services and Website. Please note that you are entirely responsible if you do not maintain the confidentiality of your password.
3. Term and Termination
3.1 This Agreement will remain in effect until all Subscriptions granted in accordance with this Agreement have expired or this Agreement is terminated by you or Skills-Tracker.
3.2 User subscriptions purchased by you or on your behalf commences on the start date specified upon payment and continues for the remainder of the Calendar year. It is your responsibility to renew your subscription upon expiry.
3.3 The Subscriber, who may be an individual user, an employer, or a training organisation is solely responsible for the proper cancellation of the account. The account may be cancelled by emailing firstname.lastname@example.org.
3.4 We may terminate this Agreement at any time in the event you materially breach this Agreement and do not remedy such breach within 30 days of written notice (including notice by email) provided by Skills-Tracker. However, in the case of non-payment (including in the event when a credit card cannot be charged), we may suspend access to the Service and may terminate this Agreement, if such breach is not remedied within 30 days of notice by Skills-Tracker to you. Further, we may terminate your access to the Service immediately if it determines that you are in breach of clause 4.1 of this Agreement.
3.5 In the event your account is terminated, other than in instances where it is terminated by Skills-Tracker for non-payment or breach of clause 4.1, the data will be held by us and may be provided to you or the fee payer upon written request. If your account is terminated due to your non-payment or a breach of clause 4.1, we shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited, delete all of your Data in Skills-Tracker’s systems. .
3.6 Skills-Tracker may downgrade, suspend or terminate your access to the Services without liability, , if such action is based on (a) our good faith belief that you have violated any provision of this Agreement (including a failure to make any payment when due)..
4. Use of our Services
4.1 During the Term, we grant you a limited, non-transferable, non-sub licensable, non-exclusive right to access and use our Software via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates us to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Services only in compliance with all applicable local, state, national, and international laws, rules and regulations. You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
(a) use the Services to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by Skills-Tracker;
(b) use the Services for any fraudulent or inappropriate purpose;
(c) attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
(d) duplicate, make derivative works of, reproduce or exploit any part of the Services without the express written permission of Skills-Tracker;
(e) use any robot, spider, other automated device, or manual process to monitor or copy any content from the Services other than copying or exporting of the Data as contemplated in the documentation; or
(f) rent, lease, distribute, or resell the Software, or use the Software for developing a competitive solution or contract with a third party to do so, or remove or alter any of the logs, trademark, patent, or copyright notices, confidentiality or proprietary legends, or other notices to markings that are on or in the Software or displayed in connection with the Services.
4.2 We will:
(a) provide you with basic support in connection with your use of the Services at no additional charge, and with upgraded support if purchased separately; and
(b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week except for:
(i) planned downtime which we shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday AEST), or
(ii) any unavailability caused by circumstances beyond our reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or denial of service attacks.
4.3 We shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. We shall not:
(a) disclose your Data except to the employer or training organisation associated with the subscription, as compelled by law, or as you expressly authorize in writing, or
(b) access your Data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.
4.4 You agree that is your responsibility to keep you Data up to date. You also agree to have all of your entries approved by an authorised supervisor and to keep a copy of these approved entries for reporting or audit purposes.
4.5 It is your responsibility to advise us of any change in your training or apprenticeship including but not limited to a change of employer, change of training institution, completion of an apprenticeship or course, or termination of employment.
5. Payment Terms
5.1 The subscription is for a calendar year or part year, expiring on 31 December of the subscription year. All fees are exclusive of GST
6. Intellectual Property Rights
6.1 Skills-Tracker owns and shall retain all right, title and interest in and to
(a) the Software and the Services, including all intellectual property rights, and
(b) transactional and performance data related to your use of the Services
We may collect, use and disclose all such transactional and performance data for our business purposes (including Software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you.
6.2 The fee payer (which may be you, your employer or your training organisation) retains all right, title and ownership interest to the Data. You have no obligation to give us Feedback relating to the Services. To the extent we receive any Feedback from you, we may use and include any such Feedback to improve the Services or for any other purpose. Accordingly, if you provide Feedback, you agree that Skills-Tracker shall own all such Feedback, and Skills-Tracker and its affiliates, licensees, clients, partners, third-party providers and other authorised entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Services or other related technologies, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to us.
6.3 From time to time during the Term, we may develop, author or prepare Deliverables, in each case pursuant to a statement of work executed by you and Skills-Tracker. We shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, non-transferable, non-sub licensable, non-exclusive license for you to use such Deliverables for your internal use during the Term. We may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
7.1 During the Term, We may disclose your name as a customer of Skills-Tracker and/or subscriber of the Services, and you hereby grant us the right to display your name and logo in our marketing materials and on the Website, in each case in accordance with any branding guidelines you may provide to us.
8. Warranties and Liability
8.1 We represent, warrant, and covenant as follows:
(a) the Software will perform substantially in accordance with the technical requirements documents that are generally provided by us in connection with the Software; and
(b) any professional services performed for you by Skills-Tracker will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, WE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. WE DO NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
8.3 EXCEPT FOR (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY SKILLS-TRACKER FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
9.1 You agree to indemnify, defend and hold harmless Skills-Tracker, and its affiliates, officers, agents, and employees from and against any Liability incurred as a result of any Claim to the extent arising from or connected with your use of the Software and/or Services in breach of this Agreement.
9.2 We agree to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or connected with an allegation that your use of the Software and/or Services in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall we have any obligations or liability arising from:
(a) use of the Software and/or Services in a modified form or in combination with materials or software not furnished by Skills-Tracker, and
(b) any content, information or data provided by you, your end users, or other third parties.
9.3 A party seeking indemnification hereunder shall
(a) promptly notify the other party in writing of the Claim,
(b) give the indemnifying party sole control of the defence of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and
(c) provide the indemnified party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim; grant such sole control; and/or provide such cooperation, information and assistance shall not relieve the indemnifying party of its obligations under this clause 9, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
10.1 No partnership/agency: Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any Liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
10.2 Entire agreement: This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. However, the service and Products are provided to you under our operating rules, policies, and procedures as published from time to time on the Site.
10.3 Force majeure: We shall not be liable for any breach of our obligations under this Agreement where we are hindered or prevented from carrying out our obligations by any cause outside our reasonable control, including by lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any law, accident (or by any damage caused by any of such events).
10.4 No waiver: No waiver by us of any default of yours under this Agreement shall operate or be construed as a waiver by us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by us to you shall in any way release, discharge or otherwise affect your Liability under this Agreement.
10.5 Notices: Unless otherwise stated within this Agreement, notices to be given to either party shall be in writing and shall be delivered by electronic mail at the email address you supplied to us or to us at our registered office.
10.6 Survival: The provisions of clauses that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such.
10.7 Severability: If any provision of this Agreement is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of this agreement shall not be affected.
10.8 Governing law: This Agreement (and all non-contractual relationships between you and us) shall be governed by and construed in accordance with the law of New South Wales and both parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.
Last updated 9 February 2017