Terms & Conditions 

Thank you for choosing LEARNBOOK®. 

LEARNBOOK provides learning management systems (LMS) software, digital e-learning content and deployment services, LMS training services and LMS hosting services, among other products and services (collectively referred to as “Services”). By using our Services, you are entering into an Agreement with us, eCreators Cloud Services Pty Ltd ACN 622 589 342 of Level 1, 468 St Kilda Road, Melbourne VICTORIA 3004 (“eCreators”).

You may use our Services to host Your Content. eCreators will provide you with an account that enables a Designated User to manage the Services.

These terms and conditions outline your legal rights with eCreators when you engage us to provide the Services and constitute a binding Agreement

LEARNBOOK® SERVICES

  • You may use our Services to host Your Content License
        1. The Services are licensed to you for your personal and non-commercial use and in accordance with the terms of this Agreement. They are not sold to you and you cannot transfer your license without specific authorisation to do so. 
        2. We require certain licenses from you to operate and enable the Services. When Your Content is uploaded to the Services, you grant us a non-exclusive, worldwide, royalty-free, sublicensable and transferable license to use, reproduce and display Your Content solely for the purposes of providing the Services.
        3. You also grant us a license to modify Your Course for the sole purpose to better showcase Your Content on the Services.
        4. We can access, view or listen to Your Content in limited ways, such as: 
          1. to provide the Services;
          2. to respond to support requests;
          3. to detect, prevent or otherwise address fraud, security, unlawful or technical issues; or
          4. to enforce the terms of this Agreement.
        5. From time to time we may apply upgrades, bug fixes and other maintenance services to the Services. We will use reasonable efforts to provide you with prior notice of any maintenance.
        6. Any future release, update or other addition to the Services shall be subject to the terms of this Agreement. If we make any changes to this Agreement, we will make a new copy of the terms available on our website. Your continued use of the Services constitutes your acceptance of the changes.
  • Your Content
        1. You are solely responsible for Your Content. There is no obligation on eCreators to pre-screen, refuse or remove any of Your Content that violates any law or regulation, or the terms of this Agreement.
        2. You represent and warrant that you own or have all necessary rights to use Your Content and any and all materials and information contained in Your Content.
  • Intellectual Property
        1. You retain all rights and ownership to Your Content. We do not claim any rights to Your Content.
        2. ECREATORS IS THE SOLE OWNER OF ALL RIGHT, TITLE AND INTEREST IN THE INTELLECTUAL PROPERTY RIGHTS IN RESPECT OF THE SERVICES.
        3. You shall not remove or destroy any copyright notices or other proprietary markings contained on or within the Services.
  • Your Access to the Services
        1. Any unauthorised use of the Services terminates the license granted by eCreators to you.
        2. You shall comply with all applicable laws. If we reasonably believe that Your Content violates the law, or infringes or misappropriates the rights of third parties or otherwise violates a material term of this Agreement, we will notify you and request Your Content is removed or:
          1. suspend the Services to you; or
          2. disable your access to the Services.
        3. Nothwithstanding clause 4(b), eCreators will remove or disable access to the Services without prior notice where your use of the Services:
          1.  is in connection with unlawful, dangerous or unauthorised activity or infringes the Intellectual Property Rights or privacy rights of a third party;
          2. may disrupt or threaten the use of the Services by others;
          3. is found in an unauthorised area of our products and services which you do not have access to; or
          4. is excessive in terms of reasonable technical limits on file volume, file size and any other technical limits.
          5. encourages illegal activities, is fraudulent or unlawful;
          6. insults, defames, harrasses or threatens others;
          7. contains obscene, vulgar, pornographic or libelous material; or
          8. if you fail tocomply with eCreator’s Acceptable Use and Publishing Policy which may be updated and changed from time to time and is currently located on its website (https://support.ecreators.com.au/hc/en-us/articles/211209543-Acceptable-Use-and-Publishing-Policy)
  • Your Responsibilities
        1. Except as expressly provided in this Agreement, you must not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means the Services or any part of the Services.
        2. You must not misuse the Services, and you must ensure your employees do not misuse the Services. This includes making sure that you or your employees will not:
          1. make derivate works of, reverse compile or reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any software or other Intellectual Property Rights in respect of the Services;
          2. rent, lease, sell, sublicence, assign, reproduce, distribute, host or transfer your rights in the Services;
          3. use framing techniques to enclose any trademark or logo and you shall not use metatags or other ‘hidden text’ using the name eCreators® or Learnbook®;
          4. install, upload or execute any computer programs until such program has been verified and confirmed by eCreators as the Services;
          5. interfere with the network or disrupt any other user of our products or services;
          6. circumvent any access or use of the Services by any means other than the interface we provide to you;
          7. permit any act which infringes the Intellectual Property Rights which subsist in the Services and which belong to eCreators;
          8. use the Services for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail; or
          9. use the Services to publish any material for which you are not the Intellectual Property Right owner or licensed by the Intellectual Property right owner or which material is defamatory.
        3. You acknowledge and agree to be bound by all applicable third party licences.
  • Third Party Services 
        1. The Services are integrated with various third-party services and applications (collectively, “Third-Party Services”) that we may make available to you or that you may purchase.
        2. These Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don’t control Third Party Services, and we’re not liable for Third Party Services or for any transaction you may enter into with them, or for what they do. Your security when using Third Party Services is your responsibility.
        3. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third-Party Services. We’re not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result (except where prohibited by applicable law).
        4. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites and what those third parties do.
  • Accounts
        1. eCreators shall provide you with an account to access the Services.
        2. You shall ensure that all information you provide to us is accurate, complete and current.
        3. You must keep your account information, including but not limited to any passwords and activation codes, confidential and not disclose same to any other party.
        4. You are responsible for all activity that occurs via your account. You must immediately notify us if you become aware of any person using the Services who is not authorised by to do so.
        5. You must conduct all appropriate virus and security checks to keep your account information safe and confidential.
  • Payment Terms
        1. You will pay the Fees as set out in payment schedule in the Statement of Work (SOW). You are required to pay the full amount of Fees, unless we otherwise agree in writing.
        2. If the Fee is not specified in the SOW, then the published rates of eCreators shall be payable.
        3. If you do not pay the Fees per the payment schedule in the SOW, eCreators is entitled to suspend the provision of the Services until the Fees are paid.
        4. If you dispute the whole or any part of the amount claimed in an invoice submitted by eCreators pursuant to this Agreement, you shall pay the undisputed amount. The dispute regarding the remainder may be referred to a dispute resolution procedure prescribed by this Agreement. If it is subsequently resolved that a further amount is payable, you will pay that amount together with interest calculated at the Interest Rate.
        5. All fees set out in the SOW are exclusive of all Taxes, including any goods and services tax (GST) or value-added tax. If GST is imposed on any supply made under this Agreement, the party making the supply will collect GST from the recipient in addition to the fees payable for the supply.
  • Confidential Information
        1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
        2. A party may:
          1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
          2. disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
        3. Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
        4. Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of the discloser’s request or on termination of this Agreement for any reason.
        5. This clause shall survive the termination or expiry of this Agreement.
  • Privacy
        1. The parties will not use or disclose any personal information for a purpose other than discharging their obligations under this Agreement.
        2. The parties agree to comply at all times with Schedule 1 of the Australian Privacy Principles (or an applicable privacy code approved by the Federal Privacy Commissioner pursuant to that Act) or, the privacy laws of the country in which this Agreement has jurisdiction.
        3. The parties will take all necessary steps to protect the personal information in their possession against misuse or loss and it will return all such information to the owner (or if requested by the owner, destroy or de-identify such information) upon termination of this Agreement. 
        4. This clause will survive the termination of this Agreement.
  • Restraint Period 
During the term of this Agreement and for a period of six (6) months after the term of this Agreement, you shall:
        1. not solicit for employment, whether directly or indirectly through a Related Entity, any person who is or was an officer, employee or contractor of eCreators;
        2. promptly advise eCreators if a person who is or was employed or contracted by eCreators seeks to be employed or contracted by you or a Related Entity; and
        3. ensure that each of your Related Entities act in a similar manner.
  • Support Services

Our objective is to provide you with a continuously operating Service that has minimal downtime. All support requests will be handled as soon as possible and in accordance with our Service Level Agreement {insert hyperlink to Service Level Agreement}.

 

  • Backup

eCreators is not responsible for backing-up externally hosted courses. If you do not use the eCreators hosting service, then you will be responsible for ensuring Your Content is adequately backed-up once it is delivered to you.

 

  • Updates to the products and services
We may modify, update, or discontinue our products and services at any time, without liability to you or anyone else. We will make reasonable efforts to notify you of the modification, update or discontinuation. If we discontinue our products and services in its entirety, we will allow you a reasonable time to download Your Content and we may provide you with a pro rata refund for any unused fees for that product or service that you prepaid.

 

  • Disclaimer of Warranties
        1. eCreators warrants that we shall provide the products and services as described in the SOW.
        2. UNLESS STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND SUBJECT TO CLAUSE 15(A), WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
        3. We disclaim any warranty that:
          1. the services will meet your requirements other than as provided in the SOW; or
          2. will be constantly available, uninterrupted, timely, secure, or error-free other than as provided in our Service Level Agreement.
        4. We specifically disclaim all liability for any actions resulting from your use of our Services. You may use and access the Services at your own discretion and risk.
  • Limitation of Liability
        1. IN NO EVENT SHALL eCREATORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXAMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM THE LOSS OF DATA, OR PROFITS, OR FOR ANY DAMAGE FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT.
        2. YOU ACKNOWLEDGE AND AGREE THAT eCREATORS ARE NOT LIABLE FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES.
        3. Our total liability in any matter arising out of or related to this Agreement is limited to the aggregate amount that you paid for the Services in the three-month period preceding the event giving rise to the liability.
        4. Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
        5. The limitations and exclusions in this clause apply to the maximum extent permitted by law.
  • Term
        1. This Terms of this Agreement commence on the date you accept the SOW and remain in full force and effect while you use the Services.
        2. If you breach any provision of this Agreement, eCreators has the right to suspend or terminate the Services provided to you or to delete any of Your Content.
        3. If you wish to terminate this Agreement, you must provide eCreators with 30 days’ notice. If you fail to provide 30 days’ notice, you will be required to pay eCreators the Termination Fee as described in the SOW.
        4. If any Fee remains unpaid for a period of fourteen (14) days, eCreators may suspend the provision of the Services or terminate this Agreement.
        5. Either party may terminate this Agreement immediately by notice if:
          1. the other party breaches (or threatens to breach) any clause and such breach is not remedied within 14 days of notice;
          2. the other party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
          3. the other party, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
          4. the other party being a natural person, dies; or
          5. the other party ceases or threatens to cease conducting its business in the normal manner.
        6. If notice is given to you pursuant to this Clause then you must pay all outstanding Fees to eCreators.
        7. Upon termination,
          1. the parties shall return all Confidential Information to the other party; and
          2. all licenses shall automatically terminate.
  • Dispute Resolution
        1. If you have any concern or dispute, you agree to first try to resolve the dispute by contacting us. If the dispute is not resolved within 30 days of submission and the parties do not agree to a further 30-day extension to try to resolve the dispute, then either party may assert their claims in court.
  • General
      1. Force Majeure: Each party shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.
      2. Assignment: You must not assign or otherwise deal in any other way with any of your rights under this Agreement without the prior written consent of eCreators.
      3. Severance: If a provision of this Agreement is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
      4. Subcontract: Any consent provided by the other party to subcontract shall not relieve the first party from any liability or obligation under this Agreement. Each party shall be liable to the other for the acts and omissions of their own subcontractors and employees and agents of subcontractors as if they were acts or omissions of the first party.
      5. Waiver: A provision of or right under this Agreement may not be waived or varied except in writing signed by the person bound.
      6. Governing Law: The law of Victoria, Australia applies to these Terms. The parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria 
      7. Entire Agreement: This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
      8. No agency or partnership: Nothing in this Agreement creates any relationship of partnership or agency between the parties.
      9. Amendment: Except as expressly provided in this Agreement, this Agreement may only be amended by a document signed by all parties.
  • Definitions
In this Agreement, the following terms have the following meanings:
 
Confidential Information all information which is supplied in connection with, or arises out of the performance of this Agreement or the SOW, but excludes information that:
  1. is or becomes lawfully available in the public domain;
  2. is or becomes available to a party from a third party lawfully in possession of such information and who has the lawful power to disclose such information without an obligation of confidentiality;
  3. is rightfully known by a party prior to the date of disclosure to it or creation by it in accordance with this Agreement; or
  4. which is required to be disclosed pursuant to any legal or regulatory requirement.
Designated User is the User appointed to manage the account for the Services. The Designated User will have additional administrative functions available to them that will not be available to the end users Instructors or Learners.
 
Fees means the fees payable as specified in the Statement of Work.
 
Force Majeure means an act, omission or circumstance over which either party could not have reasonably exercised control including but not limited to acts of God, war, terrorism, riots, embargos, acts of civil or military control, fire, floods, accidents, strikes, telecommunication failures, a pandemic as classified by the World Health Organisation (WHO), changes in law or regulation, acts of governmental authorities, restriction or suspension of licenses, delays or shortages in transportation or supply chain interruptions.
 
Intellectual Property Rights means copyrights, patents, trademarks, trade names, logos, software, designs, trade secrets and other proprietary information as may be applicable.
 
Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.
 
LMS Hosting Services means eCreators’ applications, infrastructure and functional services for the administration, documentation, tracking, reporting and delivery of Your Course via a web host.
 
Related Entity has the same meaning as “related entity” under section 9 of the Corporations Act 2001 (Cth).
 
Statement of Work refers to the statement of work that specifies the Services eCreators will provide to you, the Fees payable and any applicable Timeframes.
 
Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.
 
Timeframe means the timeframe (if any) set out in the Statement of Work.
 
User means any user of the Services including Instructors and Learners.
 
Your Content means any material such as audio files, video files, electronic documents, images, photographs, texts that you upload, post, transmit or otherwise make available through the Services. 

 

  • Interpretation

In this Agreement, unless inconsistent with the context:

      1. Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
      2. Words denoting the singular number shall include the plural number and vice versa.
      3. Words denoting any gender shall include all other genders.
      4. A reference to a statute or a regulation also refers to any statute or regulation amending or consolidating or re-enacting same.
      5. Money references are references to Australian currency.
      6. A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.
      7. Headings used in this Agreement are for convenience and ease of reference only and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
      8. Every obligation express or implied into this Agreement and entered into by more than one party shall bind them jointly and severally.
      9. Every right express or implied into this Agreement granted in favour of more than one party shall be for the benefit of each of them jointly and severally.
      10. A provision of this Agreement shall not be construed adversely to the party that drafted it.
      11. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.
      12. These terms form part of the Agreement and shall be read in the following order of precedence: these terms and conditions and The SOW.
      13. No right or remedy granted to eCreators pursuant to this Agreement excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to eCreators and all such granted rights and remedies are cumulative.