CREATABLE PTY LTD TERMS OF USE

Introduction

These terms of use set out your rights and obligations when accessing and using our online differentiated learning platform.

We’ve summarised some of the key terms here to give you an overview of the more detailed terms below.

Please read this summary and the full terms below to make sure you understand what you are signing up to, and the agreement between you and us.

If you’re happy with what you’ve read, please click the ‘I accept’ or other ‘sign up’ button to confirm your acceptance of these terms of use. Once accepted, you’re confirming that you have read, understood and agree to be bound by these terms (collectively, the Agreement).

The short version (what’s in these terms, at a glance!)

What are your key rights under these terms? You have the right to:

access and use our premium, differentiated online learning platform and content for your staff to undertake learning and development activities;
benefit from a hosted platform service, supported by us through our accessible and responsive support resources;
participate in and enjoy new courses, updates, and content as we may release to you during the term;
have your privacy (and that of your staff) protected under privacy laws, and our compliance with those laws;
own all intellectual property in your data.

What are your key obligations under these terms of use? You promise to:

provide us your user details so we can onboard your staff and give you the right access credentials;
make your staff available for our onboarding sessions where applicable, so we can identify your strategic priorities;
let us know when you need support, so we can give you the right support at the right time;
use the platform for your staff learning and development, and not for any other purposes;
pay the subscription fees notified to you when you sign up;
let us know at least 30 days before the end of each 12 month term if you want to end the agreement (or it will renew for another 12 months term).

The long version (we know there is a bit here, but please read!)

1. Term and renewal

This Agreement will commence on the date you register for an account with us and will continue for a 12 month period, unless terminated in accordance with clause 14 (Term).
This Agreement will automatically renew for a further rolling term of 12 months (each continuous 12 month period a Further Term) unless either party gives the other party at least 30 days written notice that it wishes to terminate this Agreement at the end of the then current Term.

2. Services and the Creatable Platform

We will provide you online learning and development courses, associated documentation, and access to the Creatable Platform (Services) on the terms and conditions of this Agreement (subject to any scheduled downtime and any other unplanned outage events outside of our reasonable control).

2.1 Scope of Services

The scope of the Services include us:

undertaking a discovery and assessment review process, to confirm your school staff learning and development requirements;
setting up the Creatable Platform for your users (being your school staff who are authorised by you to access and use the Creatable Platform, up to the maximum number being specified in your relevant Subscription) (Authorised Users);
providing you and your Authorised Users with access to and use of the Creatable Platform, including the Courses and Documentation;
maintaining and hosting (either directly or through our third party hosting provider) the Creatable Platform; and
providing you Customer support with your use of the Creatable Platform in accordance with our standard support services, including via direct support and support content and materials.

3. Authorised Users

We will give you and your users access to the Creatable Platform and you acknowledge:

in the case of a full school Subscription (where selected by you at the time of sign-up), each of your school staff shall have access to and use of the Creatable Platform as notified by you to us;
in the case of a Subscription that has limited number of Authorised Users (where selected by you at the time of sign-up), each of your school staff shall have access to and use of the Creatable Platform, up to the maximum number of Authorised Users relevant to your Subscription;
to provide us the key details of each Authorised User, being:
1. staff member name, position, email address and faculty; and
2. professional development objectives and desired learning outcomes (to the extent you wish to disclose this information); and
ensure each Authorised User complies with all the provisions of this Agreement.

4. Features and functionality

You acknowledge that we may vary the features and functions of the Creatable Platform from time to time. We will use our reasonable endeavours notify you if beforehand (either directly or via our website). We will not make any such variation or update that materially diminishes the functionality of the Creatable Platform or the Services.

5. New Courses and updates

We may develop, release or distribute new Courses, learning materials, Documentation and updates or versions in respect of the Creatable Platform (Updates) and provide you access to these Updates from time to time. We may require you to use certain Updates where they relate to the functionality of the Creatable Platform (such installing new versions).

6. Third Party Products or Services

You acknowledge that the Creatable Platform may interact with Party Products or Third Services, or, may require Third Party Products or Services or Third Party Providers be used to provide particular features, functionality, or for hosting purposes, including for viewing and interacting with relevant Courses and Documentation.
You acknowledge and agree that, in respect of any Third Party Products or Services, we make no representations or warranties relating to the Third Party Providers or the Third Party Products or Services (and such products or services are used at your own risk).

7. Support

We will provide support to you and your Authorised Users in relation to the use and operation of the Creatable Platform in accordance with our standard customer support offering relevant to your Subscription, including direct support via email, telephone, and other instantaneous communications methods, and indirect support via online help and support videos and documentation (Support Services).
To be able to receive Support Services, you and your Authorised Users must comply with all reasonable support procedures which we notify you of from time to time and give us prior notice when you experience any issues so we can provide our Support Services as soon as possible, and as they are needed.

8. User names and passwords

We will provide your Authorised Users with usernames and passwords (Authentication Credentials) in order for the Authorised Users to access the Creatable Platform.
You promise to ensure that each Authentication Credential is securely maintained and used only by the Authorised User to whom the Authentication Credential has been issued.

9. Your responsibilities

You will be responsible for:

the day-to-day use of the Creatable Platform;
obtaining all consents or approvals necessary for you and any Authorised User to use the Creatable Platform;
ensuring that its use, and use by the Authorised Users, of the Creatable Platform complies with all applicable laws, regulations or codes of conduct and does not infringe the Intellectual Property or other rights of any person; and
ensuring that the Creatable Platform is compatible with your computer and internet hardware and software.

10. Your obligations

You promise to:

ensure the Creatable Platform is only used for school staff learning and development purposes (and not for any other commercial or external purpose);
only use and copy the Documentation to the extent necessary to use the Creatable Platform;
not modify, publish, transmit, adapt, translate, reverse engineer, de-compile, disassemble, distribute, reproduce, republish, upload, post or copy all or any part of the Creatable Platform;
not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Creatable Platform;
notify Creatable as soon as practicable of any unauthorised use of the Creatable Platform or any other breach of security and take all actions reasonably deemed necessary to maintain or enhance the security of the Creatable Platform;
not distribute, transfer, assign, or otherwise dispose or any part of the Creatable Platform for commercial purposes or any other purposes or otherwise sub-licence or resell the Creatable Platform; and
not create derivative works from all or any part of the Creatable Platform;

11. Privacy

We take your privacy very seriously and promise to comply with all Privacy Laws. You acknowledge and agree that, in the course of providing the Services, we may collect, store, disclose and use Personal Information in accordance with Privacy Laws. Where applicable, you are responsible for ensuring that you obtain all consents necessary for us to provide the Services and collect, store, disclose and use Personal Information as may be required as part of the Services.
Each of us and you must comply with all Privacy Laws in respect of all Personal Information in doing anything pursuant to this Agreement to the extent that us or you (as applicable) is bound to do so under the Privacy Laws.

12. Fees

12.1 Fees payable

During the Term you agree to pay to us the Fees annually in advance and otherwise in accordance with this Agreement.

12.2 Payment by credit card

Unless otherwise agreed by us, you must pay all Fees by credit card at the time of checkout and before accessing or using the Creatable Platform. All Fees due and payable by the Customer to Creatable under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.
To the extent this Agreement renews for any Further Term, or Fees are payable during the Term on a recurring basis, your credit card on file will be charged on a recurring basis, for the Fees applicable at the relevant time.
All payments must be made in Australian dollars (unless expressly stated otherwise in this Agreement) and we may charge a reasonable fee for the costs incurred by us in converting any payment from you to Australian dollars to the extent applicable.

12.3 Tax Invoice

We may issue you with a tax invoice for the Fees at the time at or soon after you have finalised check out, or which we otherwise agree with you (Tax Invoice).

12.4 Failure to pay

If you do not pay any amounts due to us under this Agreement, then (without prejudice to our other rights), we may suspend your access to the Creatable Platform on giving you at least 10 days prior notice.

12.5 Changes to Fees

The Fees, as applicable from time to time, will automatically increase on the anniversary of each year of the Term by 4%, unless we give you at least 45 days written notice prior to the commencement of any Further Term of another fee increase percentage or amount we determine applicable to the relevant Further Term.

13. Termination

13.1 Termination of Agreement

We may, by written notice to you, terminate this Agreement with immediate effect if:

you fail to comply with any written notice issued by us requiring you to remedy a breach or your obligations under this Agreement within 7 days of receiving that notice from us; or
you commit a breach of this Agreement which is incapable of remedy.

13.2 Termination for convenience

We may terminate the provision of any Services under this Agreement, or the Agreement, at any time on a without cause basis upon the provision of 30 days’ written notice to you, acting reasonably and in good faith (provided we refund any advance amounts paid by you in accordance with this Agreement).

14. Consequences of termination

14.1 Consequences

Upon termination of this Agreement taking effect, you must cease using and ensure that each Authorised User ceases using the Creatable Platform, and return to us any Documentation in your possession or control.
If we terminate this Agreement under clause 14.2, we must refund to you any amounts paid by you to us in respect to the Fees for that Service which, calculated on a pro rata basis relate to the period from the date of termination to the end of the period for which the Fees have been paid.

14.2 Survival of certain terms

The termination or expiry of this Agreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the party’s obligations under clauses 11, 12.4, 15, 16, 18, 19, 20, 21 and 22 of this Agreement.

14.3 Promotion and marketing

You agree that, for the purposes of promoting and marketing our business and the Creatable Platform, we are entitled to notify others of our relationship with you and our provision of the Services to you.

15 Intellectual Property

15.1 Creatable’s Intellectual Property

You acknowledge that nothing in this Agreement grants you any ownership of or rights in respect of the Intellectual Property in the Creatable Platform or any Documentation, any Intellectual Property in any materials created as a result of the performance of the Services or any Improvements to the Creatable Platform or Documentation created in connection with this Agreement.
Any Intellectual Property in respect of the Creatable Platform or Documentation which is created by or vests in you during the Term is assigned to us immediately upon the Intellectual Property being created or vesting and you agree to do all things as is reasonably necessary to effect such assignment.
During the Term we grant you a limited, non exclusive and revocable licence to use the Intellectual Property referred to in this clause 16.1 solely to the extent such use is necessary for you to receive the Services. Unless revoked earlier by us, the licence granted under this clause 16.1 terminates immediately upon the termination or expiry of this Agreement.

15.2 Trade marks

Subject to clause 15.3, nothing in this Agreement grants either party any ownership of or rights to use the trade marks of the other party. Subject to clause 15.3, each party will not adopt, register or attempt to register or use any trade marks which are identical or deceptively similar to the trade marks owned by the other party.

15.3 Data

We acknowledge that, as between us and the you, the you will own all Intellectual Property in respect of the Customer Data (other than any Intellectual Property in the design, format and layout of the presentation of any Customer Data on the Creatable Platform).
Subject to all applicable laws (including privacy and data protection laws that may be applicable to us and you), you grant us a non-exclusive, irrevocable, royalty free licence during the Term to reproduce the Customer Data which is owned by, or licenced to, us solely for:
1. the purposes of providing the Services and any Additional Services to us;
2. any purposes which are necessary for the operation of the Creatable Platform; and
3. any purposes relating to the development, improvement, promotion, or marketing of the Creatable Platform or the other products and services of us but only if the Customer Data is used for this purpose in a de-identified and/or aggregated form.
We own all Creatable Platform Data and all Intellectual Property in that data, and you acknowledge and agree that we may use such Creatable Platform Data for any commercial or other purposes it determines, including marketing and promotional purposes.
For clarity, we will not disclose any of your or your Authorised Users’ Personal Information except in accordance with the Privacy Laws.

16. Subcontractors

You agree that we may subcontract the performance of any of our obligations or the exercise of any of its rights under this Agreement to any sub-contractor without your consent and on such terms and conditions as we deem fit from time to time.

17. Consumer Guarantee

17.1 Consumer laws

There may be laws which confer in favour of you certain consumer guarantees or warranties in relation to the Creatable Platform or the performance of our obligations under this Agreement and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights where the exclusion, restriction or modification of such rights is prohibited by the applicable law (Consumer Laws).

17.2 Limitation of liability

If you make a claim against us regarding the goods or services provided under this Agreement in respect of a breach or alleged breach by us of the Consumer Laws, then to the extent permitted by law, our liability to the you for such a breach or alleged breach of the Consumer Laws will be limited, at the election and discretion of us, to:

if the breach relates to goods:
1. the replacement of the goods or the supply of the equivalent goods; or
2. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
if the breach relates to services:
1. the supply of the services; or
2. the payment of the cost of having the services supplied again.

18. Warranties excluded

Subject to clause 18, we do not warrant or guarantee that the Creatable Platform will be fit for any particular purpose or the Services or your access to the Creatable Platform will be uninterrupted or error free.

19. Limitation of liability

19.1 Liability capped

Subject to clause 18 and to the extent permitted by law, any liability of ours for any Loss, however caused (including by the negligence of us), suffered by you in connection with this Agreement or its access to or use of the Creatable Platform is limited to the total amount of the Fees payable by you to us in the 12 month period immediately prior to the date a claim first arose (or in the case of more than one claim or forms of Loss when the first of those claims or forms of Loss arose).
The limitation set out in this clause 20.1 is an aggregate limit for all claims or Loss, whenever made.

19.2 Consequential Loss

Subject to clause 18 and to the extent permitted by law, we are not liable for any Consequential Loss (however caused) suffered or incurred by you in connection with this Agreement. This clause applies even if we knew or ought to have known that the relevant Consequential Loss would be suffered.

20. Taxes

Unless expressly stated otherwise, all fees and other amounts payable by you under or in connection with this Agreement have been calculated without regard to any Indirect Tax. Notwithstanding anything to the contrary in this Agreement, if Indirect Tax is imposed upon or is payable by you under or in connection with this Agreement, you must pay to us an amount equal to the Indirect Tax upon demand.

21. General provisions

21.1 Authority

If you are entering into this Agreement as an agent, officer, employee or other representative of the Customer, you must have the necessary authority to bind the Customer to this Agreement.

21.2 No exclusivity

You acknowledge and agree that all rights granted to you under this Agreement (including all rights to use the Creatable Platform) are non-exclusive.

21.3 Governing Law

This Agreement will be governed by and construed and interpreted exclusively under the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Federal Court of Australia.

21.4 Entire agreement

This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.

22. Definitions and interpretation

22.1 Definitions

In this Agreement, unless the context otherwise requires:

Agreement has the meaning given in the introduction.
Authorised User has the meaning given in clause 2.2(b).
Confidential Information means any information provided by a party to the other party (whether provided before or after execution of this Agreement) in connection with the Services or this Agreement (and in the case us, includes the Documentation or any other information regarding the Creatable Platform) but does not include information which is in or becomes part of the public domain, other than through a breach of this Agreement or of an obligation of confidence, or information which a party proves was independently acquired or developed without breaching any of the obligations set out in this Agreement.
Consequential Loss means:
1. any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, loss of data and loss of opportunity; and
2. any loss beyond the normal measure of damages.
Course means the professional learning courses made available within the Creatable Platform including video content, user activities and assessments, and associated Documentation, as determined by us from time to time.
Creatable means Creatable Pty Ltd ACN 637 852 441 and the words “we” and “us” have a corresponding meaning.
Creatable Platform means the online, differentiated professional learning and development platform, which is made available by us for your use and/or your Authorised Users from time to time.
Creatable Platform Data means all data that is generated from or through the Creatable Platform, including usage and activity data and metrics, login, navigation and logout data, user profile and engagement data and all other analogous data.
Customer means the person or entity who is identified as such when registering with us for an account to access and use the Creatable Platform and the words “you” and “your” have a corresponding meaning.
Customer Data means all information, images, documents and other data (whether relating to you, your Authorised Users, or otherwise) uploaded to the Creatable Platform by or on behalf of you or your Authorised Users but excluding any Creatable Platform Data.
Customer Infrastructure means the computer servers, networks, other information technology hardware, systems and applications owned or operated by you and in respect of which are required to access the Creatable Platform.
Documentation means any manuals, guides, reference materials, learning and development content, or other similar documents in any form made available by us to you in connection with the Creatable Platform.
Fees means:
1. the fees payable for access to and use of the Creatable Platform and Services as specified online at the time of checkout and payment by you following the Customer’s set up of your account with us; and
2. any other fees or other amounts payable by you to us under this Agreement, as may be adjusted from time to time in accordance with this Agreement.
Further Term has the meaning given in clause 1(b).
Improvement means any modification, alteration, development, new use or other change to the Creatable Platform which makes it more accurate, more useful, more functional, more efficient, additional content or in any other way preferable.
Indirect Tax means a goods and services tax, a value added tax, a consumption tax or a tax of a similar kind.
Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above.
Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
Personal Information means information that is personal information for the purposes of, or otherwise protected under, the Privacy Laws and which a party collects, uses, discloses or otherwise handles in the course of or in connection with this Agreement.
Privacy Laws means the Privacy Act 1988 (Cth), any applicable APP Code under the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth), as amended from time to time.
Services means the services provided by Creatable to you through the Creatable Platform in accordance with this Agreement, including the provision of Courses and Documentation and access to and use of the Creatable Platform in accordance with this Agreement.
Subscription means the subscription you sign up to with us via our website for accessing and using the Creatable Platform, with the number of Authorised Users, Fees and other key details notified to you at the time of sign up and payment of the relevant Fees.
Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any government authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.
Term has the meaning given in clause 1.
Third Party Infrastructure means the computer servers, networks, other information technology hardware, solutions, systems, applications and hosting services owned, operated or provided by a third party and in respect of which any Services are to be provided.
Third Party Products or Services means any product, feature, system or application owned or operated by a Third Party Provider and which can be, or which is, integrated or interfaced with the Creatable Platform.
Third Party Provider means any third party that provides support, technology and/or other products or services that are used by you or an Authorised User in connection with the Creatable Platform.

22.2 Interpretation

In this Agreement, headings are inserted for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:

the singular includes the plural and vice versa;
if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; and
a reference to dollars or $ is to an amount in Australian currency, unless otherwise stated in this Agreement.