Terms of Use - Cool+ Platform

(1) About these Terms

  1. Cool Plus Education Pty Ltd (ABN 39 666 535 646) (Cool+, we, us, our) develops and produces Resources (including educational content) that are made available by Cool+ for access and Use via the Platform. 
  2. These terms of use (Terms) and any Order forms the agreement between Cool+ and the user (User, you) and sets out the terms and conditions on which you subscribe for access to the Platform and Use of the Resources (Agreement). 
  3. The User must read and accept these Terms prior to accessing the Platform and Using the Resources. The User accepts these Terms, along with an Order, by clicking ‘I accept’ (or otherwise confirming the acceptance of these Terms electronically).  
  4. By accepting these Terms, you agree that you have read, understood and will be bound by the Agreement.
  5. If you do not accept these Terms, you should not access the Platform and/or Use the Resources.
  6. If you use content made available by Cool Australia on the website coolaustralia.org, use of that content will be subject to a separate agreement between you and Cool Australia on the terms set out at https://www.cool.org/terms-conditions/. 

1.1 Subscription Services

1.2 Provision of Subscription Services 

During the Subscription Term, Cool+ will provide the Subscription Services to the User on the terms and conditions of the Agreement.

1.3 Subscription Services

The Subscription Services will consist of Cool+:

  1. providing the User with access to the Platform and Use of the Resources during the Subscription Term with the benefits and restrictions applicable to the User’s Subscription Level as set out in the Order or agreed between the parties in writing; and
  2. any other services expressly set out in the Order.

1.4 Subscription Term

  1. The Subscription Term commences on the Subscription Commencement Date and will continue for the Initial Term, unless terminated earlier in accordance with clause 11. 
  2. At the expiry of the Initial Term or any Further Term, this Agreement will automatically renew for a Further Term, unless a party provides written notice to the other party at any time prior to the expiration of the Initial Term or the then current Further Term (as the case may be) that the Agreement will not be renewed and will instead expire at the end of the Initial Term or that Further Term (as applicable). 
  3. If notice is provided in accordance with clause 2.3(b) then Cool+ will continue to provide the Subscription Services and the User will continue to the pay the Fees in accordance with this Agreement until the end of the Initial Term or then current Further Term (as the case may be).
  4. At any time during a Further Term, the User may terminate the Agreement by providing Cool+ with no less than 30 days’ notice.
  5. If the Agreement is terminated under clause 2.3(d) then Cool+ will refund to the User that proportion of any Fees paid in advance (including Fees for Subscription Services not yet provided from the date of termination to the end of that Further Term). 

1.5 Subscription Level

  1. The Subscription Level that the User purchases from Cool+ will determine the specific benefits and features available to the User.
  2. If the User wishes to upgrade their Subscription Level they may make a request to Cool+ for their Subscription Level to be upgraded and Cool+ will, subject to agreeing the Fees to be paid in respect of the upgraded Subscription Level, upgrade the User’s Subscription Level.
  3. The User agrees that Cool+ may amend the Subscription Levels from time to time, provided that, unless otherwise agreed by Cool+, any such variations will only take effect on and from the expiry of the then current Initial Term or Further Term (as applicable).
  4. If the User breaches any of the restrictions or limits for the User’s Subscription Level then the User must immediately:
  5. ensure its access to the Platform and Use of the Resources is reduced or limited so that it complies with the relevant restrictions or limits; or
  6. upgrade the User’s subscription to a Subscription Level which would enable the User’s continued access to the Platform and Use of the Resources to comply with this Agreement.

1.6 Trial Access 

  1. Cool+ may from time to time provide access to some or all of the Platform or make some or all of the Resources available on a free basis without the need for a User to pay Fees (Trial Access). 
  2. The User acknowledges and agrees that the Trial Access may be made available for such period as nominated by Cool+ from time to time before commencement of the Trial Access and will be subject to such terms that we notify you of prior to the commencement of Cool+ providing the Trial Access.
  3. During the Trial Access, the User must comply with all applicable provisions of these Terms in accessing the Platform and Using the Resources.
  4. Where the User is provided with a Trial Access, the User acknowledges and agrees that:  
  5. such use may be subject to other restrictions or limitations as determined by Cool+ acting reasonably; 
  6. the User may be required to pay a fee for Using particular Resources not included as part of the Trial Access; and 
  7. some or all of the features, functions and other benefits of the Platform may be unavailable.

(2) Licence 

2.1 Grant of licence

Subject to this Agreement (including the restrictions set out in clause 4.2), Cool+ grants the User a personal, non-exclusive, worldwide, non-transferable, not-for resale or sub license, restricted licence to access the Platform and Use the Resources only for the Permitted Purpose during the Term. 

2.2 User restrictions 

The User must not:

  1. access the Platform and Use the Resources in any way or for any purpose other than for the Permitted Purpose;
  2. modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Platform; 
  3. interfere or attempt to interfere with the proper working of the Platform;
  4. circumvent, modify or break or attempt to circumvent, modify or break any security or protection device contained in the Platform;
  5. sub-licence or resell access to the Platform;
  6. distribute any part of the Resources for commercial purposes; 
  7. create derivative works from all or any part of the Resources other than for the personal and non-commercial teaching or educational purposes of the User; 
  8. transfer, assign, rent, lease, lend, sell, or otherwise dispose of all or any part of the Platform or Resources; and
  9. publish, communicate or otherwise make any part of the Platform or Resources publicly available.

2.3 User obligations

Without limiting the other obligations of the User under this Agreement, the User must not:

  1. disrupt, interfere with or otherwise adversely affect the normal operation of the Platform;
  2. attempt to gain unauthorised access to the Platform or Accounts registered or used by others by any means;
  3. attempt to harass, abuse, harm, advocate or incite harassment to any User or any other person or group, including Cool+ employees or other representatives;
  4. solicit, or attempt to solicit, Login Details or any other login credentials or User Data from other Users of the Platform; 
  5. collect or post another person’s data (including personal information and personally identifiable information) through the Platform without that person’s consent; or
  6. use the Platform or Resource in any way or for any purpose other than as permitted by this Agreement.

2.4 User Responsibilities

The User will be responsible for:

  1. any charges the User may incur from their mobile or internet service provider for accessing the Platform or Using the Resources;
  2. satisfying itself that the Resources are fit for the purposes for which they are used by the relevant User; 
  3. protecting your Login Details and doing everything reasonably necessary to protect your Login Details from unauthorised use or disclosure to any other person;
  4. satisfying itself that the Platform and Resources are compatible with its own device, Third Party Applications and internet and network capabilities and maintaining all devices, Third Party Applications and other technology necessary to be able to access the Platform and Resources; and
  5. taking reasonable steps and precautions to protect the security of its hardware (including mobile device), including ensuring the hardware does not have any viruses, malicious code or other conditions which could damage or interfere with the Platform.

2.5 Additional obligations  

Without limiting the other obligations of the User under this Agreement, to access the Platform and Use the Resources, the User must:

  1. not be located in a country that is subject to an embargo by the government of the Commonwealth of Australia;
  2. not be included on any list of prohibited or restricted parties by the government of the Commonwealth of Australia; and
  3. comply with the laws that apply to you in the location that you access the Platform and Use the Resources. If any laws applicable to you restrict or prohibit you from accessing the Platform and/or Using the Resources, you must comply with those legal restrictions or, if applicable, stop accessing the Platform and/or Using the Resources. Cool+ makes no representations that the Platform and Resources comply with the laws of any country outside of the Commonwealth of Australia. 

2.6 Monitoring access and downloads

For security, statistical, compliance, regulatory and other related purposes Cool+ may: 

  1. monitor the User's access to the Platform and Use of the Resources; and
  2. record or otherwise capture data or other information relating to the User's access to the Platform and Use of the Resources (including username, country and location).

(3) Platform features and availability

3.1 Variation and availability

  1. The User acknowledges that, subject to clause 5.1(b), Cool+ retains the sole discretion regarding the Resources and features, functions and other benefits that will be available within the Platform from time to time and that: 
  2. nothing in this Agreement requires Cool+ to provide or maintain any particular Resources or features, functions and other benefits of the Platform;
  3. Cool+ may vary the Resources and features, functions and other benefits available to the User in respect of the Platform at any time;
  4. not all of the Resources and  features, functions and other benefits may be available at all times;
  5. some or all of the Resources and features, functions and other benefits may be unavailable due to scheduled outages and downtime, disaster recovery processes or due to circumstances beyond the control of Cool+; and
  6. nothing in this Agreement imposes obligations on Cool+ to provide any services to the User in respect of the Platform including (without limitation) development or customisation services, technical or user support, training or maintenance services.
  7. Cool+ agrees that where the User has purchased a Subscription Level, Cool+ will ensure that during the relevant Subscription Term the Platform continues to include or otherwise provide for the User the material features, functions and other benefits described in the Order.
  8. Cool+ will use reasonable efforts to provide Users who have purchased a Subscription Service with notice before making material changes to the Platform. 
  9. Where Cool+ makes a change to the Platform that has a material adverse impact on the User the User may, at any time within 30 days of the change, terminate this Agreement by written notice to Cool+. 

3.2 Updates

The User acknowledges and agrees that nothing in this Agreement imposes obligations on Cool+ to develop or release any new or replacement Resources or new update, upgrades, patches, bug fixes, features, functions, versions or other benefits or any Improvement in respect of the Platform (Updates), provided however that if Cool+ does develop or release any Updates or new or replacement Resources, it may implement the relevant Updates or new or replacement Resources on the Platform. 

(4) Account and Login Details

4.1 Account

  1. To access and use the Platform you will be required to create an Account with us. To register an Account, please ensure you carefully follow the provided instructions and provide all necessary information as requested by us.
  2. You represent and warrant that any information you provide in connection with the creation of the Account is and will remain accurate and complete, and that you will maintain and immediately update such information.
  3. Your Account is personal to you and is non-transferable.
  4. You must not share your Account or Login Details with others or allow others to access or use the Platform using your Account or your Login Details.
  5. You acknowledge and agree that Cool+ may suspend your access to the Platform if Cool+ reasonably believes that you are doing so. 

4.2 Login Details

  1. Access to the Platform and Use of the Resources may be denied to the User if the User enters incorrect Login Details.
  2. The User must:
    1. ensure that their Login Details are securely maintained and used only by the User and not any other person;
    2. immediately notify Cool+ if Login Details are lost, stolen, missing or misused; and 
  3. not transfer or allow Login Details to be transferred to other individuals or systems and take all reasonable steps to ensure that Login Details are not transferred.
  4. You acknowledge that we may provide access to your Account to any person who enters your Login Details and therefore it is important that you keep your Login Details secure. 
  5. Any action or request made by any user of your Account or Login Details (Instruction) will be deemed to have been made by you and the Instruction may be carried out without further enquiry.  You will be responsible for all use of your Account, Login Details or Instructions provided and consequential transactions whether authorised by you or not.  We will not be liable for any loss you suffer as a result of us reasonably acting on an Instruction.
  6. The User acknowledges and agrees that Cool+ reserves the right at any time and from time to time to change and/or revoke Login Details or require the User to change the Login Details by providing the User with written notice where such change and/or revocation is necessary to address security or other similar risks.
  7. You must immediately notify us if you are or become aware that there is or has been an unauthorised use of your Account or Login Details, or any other security breach relating to your Account.

4.3 Third Party Applications

  1. The Platform may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used to provide particular features, functionality, information or services. Where such Third Party Applications are used, you acknowledge and agree that: 
  2. the Third Party Applications are provided solely by the relevant Third Party Provider and you will need to raise any issues regarding the Third Party Applications with the relevant Third Party Provider;
  3. the User will abide by any terms of use or other terms imposed upon it by Third Party Providers in respect of any Third Party Application; 
  4. access to, and use of, Third Party Applications is at the User’s risk and Cool+ will in no way be responsible for any Loss that may result from the User’s access to, and use of, any Third Party Application or the User’s dealings with any Third Party Provider (including use of any information or data provided by or through any Third Party Application or Third Party Provider), notwithstanding that any such Third Party Application may interface or interact with the Platform; and
  5. if the User does not agree to use any Third Party Applications or the terms of service of such Third Party Applications, the User acknowledges and accepts that certain features of the Platform may not be available to the User.

(5) Fees and expenses 

5.1 Fees and expenses payable 

The User agrees to pay to Cool+ the Fees using a Payment Facility accepted by Cool+ at the time the payment of the Fee is required.

5.2 Payment of Fees

The User must pay the Fees to Cool+ in accordance with the terms of payment set out in the Order. 

5.3 Failure to pay 

If the User fails to pay any amounts due to Cool+ under this Agreement (including where any Payment Facility provided by the User is declined or otherwise rejected) then, without prejudice to Cool+’s other rights regarding the non-payment Cool+ may issue a notice to the User stating that the Tax Invoice is overdue (Overdue Notice). If Cool+ does not receive payment of the relevant Fees within 14 days of the date of the Overdue Notice, Cool+ may cease providing the Subscription Services and may disable the User’s access to the Platform until such time as the outstanding amount is paid in full (together with any interest). Cool+ will not be liable for any Loss suffered by the User as a result of Cool+ exercising its rights under this clause 8.3. 

5.4 Increases to fees

  1. Unless otherwise expressly agreed in writing by Cool+, Cool+ may increase the Fees payable by the User at the start of any Further Term by providing notice in writing to the User at least 30 days before the end of the then Initial Term or Further Term (as the case may be), and, if the User does not agree to the increase in Fees then the User may terminate this Agreement.  
  2. Any increase in the Fees notified by Cool+ under clause 8.4(a) will become effective on and from the commencement of the next Further Term.

(6) Intellectual Property

  1. The User acknowledges and agrees that:
    1. Cool+ owns all Intellectual Property in the Platform, Resources, Data and any Improvements  (including any Improvements created by Cool+ as a result of feedback or suggestions made by the User); 
    2. during the Subscription Term the User is granted a licence under clause 4.1 to access to the Platform and Use the Resources and any relevant Improvements only to the extent such use is necessary for the User to receive the Subscription Services under this Agreement; and
    3. without limiting the restrictions in clause 4.2, the User must not copy, reproduce, publish, distribute, rent, lease, sell, transfer, or in any manner commercially exploit any part of the Resources unless expressly authorised by Cool+. 
  2. Any Intellectual Property in respect of the Platform, Resources, Data or any Improvements which is created by, or vests in, the User is assigned to Cool+ immediately upon the Intellectual Property being created or vesting in the User and the User agrees to do all things and execute all documents as is reasonably necessary to effect such assignment. 
  3. The User owns all Intellectual Property that may exist in the User Data. The User grants Cool+ a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferrable and sub-licensable licence to use, reproduce and otherwise exploit the User Data for or in connection with the provision of the Platform, or for other activities, operations or business purposes of Cool+ or its licensees. 

(7) Security

  1. Cool+ will take reasonable steps to keep the Platform secure. 
  2. Without limiting the other obligations of the User under this Agreement, Users are responsible for taking all necessary and reasonable steps to ensure that their Login Details, Account and device are securely maintained and used only by the User.

(8) Term, suspension and termination 

8.1 Term 

This Agreement commence on the Commencement Date and will continue in effect as long as you maintain an Account with us or otherwise access, use or interact with the Platform or until terminated in accordance with this Agreement.

8.2 Suspension

Cool+ may, at any time, by reasonable notice to the User where providing such notice is reasonably practicable, temporarily, or indefinitely, suspend the User’s access to a User’s Account and the Platform (or any part of it), if any one or more of the following applies: 

  1. such suspension is reasonably required to address material security, performance or legal compliance issues in respect of the Platform; 
  2. Cool+ believes on reasonable grounds that the User is in material breach of any provision of this Agreement and the suspension is necessary to prevent further actual or potential Loss or damage in respect of such breach; or 
  3. Cool+ believes on reasonable grounds that the User has made unauthorised use of the Resources. 

8.3 Termination 

  1. Cool+ may, at any time, terminate this Agreement if:
    1. the User breaches any provision of this Agreement which is capable of remedy and fails to remedy such breach within 7 days after being provided with written notice of the breach by Cool+;
    2. the User breaches any material provision of this Agreement which is not capable of remedy; or
    3. Cool+ ceases operating the Platform. In such event, Cool+ will provide as much notice as reasonably possible to the User.
  2. The User may, at any time, terminate this Agreement:
    1. in accordance with clauses 5.1(d), 8.4(a) or 16.4;
    2. if Cool+ breaches any provision of this Agreement which is capable of remedy and fails to remedy such breach within 7 days after being provided with written notice of the breach by the User; or
    3. if Cool+ breaches any material provision of this Agreement which is not capable of remedy.

8.4 Consequences of termination

  1. Upon termination or expiry of this Agreement taking effect, the User must immediately:
    1. cease using the Platform;
    2. pay to Cool+ all Fees, expenses or other amounts payable to Cool+ for the Subscription Services provided up to the date of termination or expiry; 
  2. if requested to do so by us, provide us with written confirmation that you have complied with your obligations under this clause 11.4. 
  3. Immediately on termination of this Agreement, Cool+ may disable a User’s access to the Platform and Resources and the User will not be able to access the Platform and Resources. 
  4. Upon termination of this Agreement by the User under clause 11.3(b) Cool+ will refund to the User that proportion of any Fees paid in advance (including Fees for Subscription Services not yet provided from the date of termination to the end of that current Initial Term or Further Term).
  5. Provided this Agreement is not terminated by Cool+ due to your breach, then you may retain and continue to use any Resources you have downloaded from the Platform for the Permitted Purpose, provided that you must continue to comply with all applicable provisions of this Agreement regarding the use of the Resources including clauses 4.2(a), 4.2(f), 4.2(g), 4.2(h) and 4.2(i). If this Agreement is terminated due to your breach then you must cease using and delete all Resources on and from termination. 

8.5 Survival of certain terms

The termination of this Agreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination, including the parties’ rights and obligations under clauses 4.2, 8.3, 9, 11.4, 11.5, 12, 13, 15, 16 and 17 of this Agreement and those rights or obligations remain in full force and binding on the party concerned.

(9) Liability of Cool+

  1. If the User is a consumer as defined in section 3 of the Australian Consumer Law (Consumer) and Cool+ supplies PDH Goods or Services to the User, Cool+ acknowledges that the User may have certain rights under the Australian Consumer Law in respect of the guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by Cool+ and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
  2. If the User is a Consumer and any goods or services supplied by Cool+ to the User are non PDH Goods or Services, Cool+’s liability to the User in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at Cool+’s discretion) to: 
  3. in the case of goods:
    1. the replacement of the goods or the supply of equivalent goods;
    2. the repair of the goods;
    3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    4. the payment of the cost of having the goods repaired; and
  4. in the case of services:
    1. the supplying the services again; or
    2. the payment of the cost of having the services supplied again.
  5. Subject to clause 12(e), if the User makes a claim against Cool+ which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the maximum aggregate liability of Cool+ to the User under or in connection with this Agreement and any claim (including for breach of this Agreement by Cool+ or any negligent act or omission of Cool+) shall be limited to the greater of the total amount of the Fees paid to Cool+ by the User under this Agreement and the sum of $100. 
  6. Subject to clause 12.1(e), the User’s aggregate liability to Cool+ in respect of all claims which Cool+ may have against the User under this Agreement (other than any claim for payment of any Fees or interest) will not exceed the greater of the total amount of the Fees paid to Cool+ by the User under this Agreement and the sum of $100.
  7. Subject to clause 12(a), neither party will be liable to the other party for any Consequential Loss incurred by the other party under or in connection with this Agreement or as a result of the User’s access to the Platform or Use of the Resources, even if the party has been advised of the possibility of such Consequential Loss being incurred.

(10) Warranties 

10.1 Warranty exclusions

  1. Subject to clause 12, Cool+ does not provide any warranties or guarantees regarding the Platform and Resources. 
  2. Without limiting clause 13.1(a) and subject to clause 12, Cool+ does not warrant or guarantee, to the User that the Platform and Resources:
    1. will be uninterrupted or error-free; 
    2. will be suitable or fit for any particular purpose;
    3. is professional advice and to be relied upon as such;
    4. will be accurate or reliable; or
    5. will be compatible with any other computer software, computer hardware or other technology. 

(11) Subcontractors

We may use subcontractors or other service providers to assist us to provide the Platform and Resources from time to time. However, we will remain responsible to you complying with our obligations under this Agreement. 

(12) GST

12.1 Definitions and interpretation

Words and expressions used in this clause 15 which are not defined in this Agreement, but which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act), have the meaning given to them in the GST Act.

12.2 Consideration does not include GST

The consideration for any supply made under or in connection with this Agreement does not include an amount for GST, unless it is expressly stated in this Agreement to be inclusive of GST.

12.3 Recovery of GST

If GST is or becomes payable on any supply made under or in connection with this Agreement (not being a supply for which the consideration is expressly stated in this Agreement to be inclusive of GST), the party required to provide the consideration for the supply must pay, in addition to and at the same time as the consideration is provided, an amount equal to the amount of GST on the supply.

12.4 Adjustment of amount recovered for GST

If the amount for GST recovered by a party under this clause 15 differs from the amount of GST payable by the party or its representative member on the supply, the amount of the difference must be paid to or refunded by the party (as the case requires).

12.5 Reimbursement or indemnity payments

If a party is required under this Agreement to reimburse or indemnify another party for any amount incurred by the other party, the amount to be reimbursed or paid by the party will be the amount incurred reduced by an amount equal to any input tax credit that the other party or its representative member is entitled to claim for the amount incurred and increased by the amount of any GST payable in respect of the reimbursement or payment.

(13) General provisions

13.1 Governing law

These Terms will be governed by and construed exclusively under the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the Federal Court of Australia.  

13.2 Privacy policy 

Cool+ will collect, handle and store personal information (including personal information regarding the User and their access and Use of the Platform and Resources, and any personal information forming part of the User Data) in accordance with Cool+’s privacy policy, a copy of which is available at [#insert link] or by requesting a copy from Cool+.

13.3 Assignment

The User may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Cool+. Cool+ may assign, novate or otherwise deal with its rights or obligations under this Agreement at any time effective immediately upon Cool+ notifying the User of the assignment or novation where the assignment or novation will not adversely affect the rights of the User.

13.4 Waiver and variation 

Cool+ may vary the terms of this Agreement by publishing new terms via an update and notification to Users via the Platform (or by other communication methods such as email) no less than 30 days prior to the varied terms taking effect (Variation). If the Variation adversely affects the User’s rights in a material way, the User may terminate this Agreement. No failure to exercise or delay in exercising any right given by or under this Agreement to a party constitutes a waiver and the party may still exercise that right in the future. 

13.5 Force Majeure Event

If a party is prevented, hindered or delayed from performing its obligations under this Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.

13.6 Severability

If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

(14) Definitions and interpretation

14.1 Definitions 

In this Agreement, unless the context otherwise requires:

  1. Account means a user account which the User is required to create in order to be able to access the Platform and Use the Resources.
  2. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) (or any equivalent State or Territory legislation).
  3. Commencement Date means the date the User accepts these Terms in accordance with clause 1.1(c) of these Terms.  
  4. Consequential Loss means: 
    1. all indirect and consequential Loss; 
    2. all Loss beyond the normal measure of damages; and
    3. all Loss of revenue, Loss of data, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
  5. Cool Australia means Cool Australia Limited as trustee of the Cool Australia Trust ABN 52 435 794 034. 
  6. Data means the information and data generated by the Platform or made available to the User through the Platform.
  7. Fees means any fees or other amounts payable by the User to Cool+ under this Agreement, including the fees set out in the Order and any increases under clauses 2.4(d)(ii) or 8.4. 
  8. Further Term means consecutive periods of time as set out in the Order (if any) or agreed between the parties in writing commencing immediately after the expiry of the Initial Term or the previous Further Term (as applicable).
  9. Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war (declared or undeclared) civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing transmission service (such as internet, private network or virtual private network) or telecommunications outage or impairment or failure of the performance or availability of a transmission service. 
  10. Improvement means any modification, alteration, development, new use or other change to the Platform or Resources which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way improves the Platform or Resources.
  11. Initial Term means the period of time set out in the Order or agreed between the parties in writing which begins from the Commencement Date. 
  12. Intellectual Property means all present and future copyright, rights to inventions including patents and patent applications, modifications or improvements to the same, registered and unregistered trade marks, registered and unregistered designs, rights to trade secrets and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
  13. Login Details means the username and password or other means of authentication which the User is required to provide in order to be able to access their Account. 
  14. 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.
  15. Order means the order form provided by Cool+ to the User detailing the Subscription Services.
  16. Payment Facility means any payment facility accepted by Cool+ from time to time. 
  17. PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
  18. Permitted Purpose means the User accessing the Platform and Using the Resources for personal, non commercial educational or teaching purposes , including in the capacity of an educator, parent or student. 
  19. Platform means the web-based application where Resources are made available for Use by Users and which can be accessed via the website located at [insert] as updated and modified by Cool+ from time to time. 
  20. Resource means any material, content or Data created, developed, licensed or owned (whether in part or full) by Cool+, including lesson plans, online courses facts sheets, infographics, work sheets, student worksheets, teacher explainers, videos, how-to's and podcasts in relation to Australian school education, and which is made available for access, use and download on the Platform, and Resources has a corresponding meaning. 
  21. Subscription Commencement Date means the commencement date set out in the Order or, if no date is set out in the Order, the earlier of:
    1. the date the User confirms its acceptance of the Order either in writing or electronically; and
    2. the date the User first uses the relevant Subscription Services.
  22. Subscription Level means the subscription level or type of subscription that the User purchases from Cool+ from time to time, as set out in the relevant Order or otherwise agreed with Cool+. 
  23. Subscription Services means the services described in clause 2.2. 
  24. Subscription Term means the period of time during which Cool+ will provide the Subscription Services to the User, as set out in clause 2.3. 
  25. Term means the period described in clause 11.1 of this Agreement.
  26. Third Party Application means any product, service, system, application or internet site that is integrated or interfaced with the Platform or otherwise interacts with the Platform and that is owned or operated by a Third Party Provider.
  27. Third Party Provider means any third party that provides services, support, technology and/or other products or services that are used by a person (including the User) in connection with the Platform.
  28. Trial Access is defined in clause 3.1(a) of this Agreement. 
  29. Use means to access, use and download the Resources and store the Resources on any device of the User, and Using has a corresponding meaning.
  30. User Data means all information, communications and other data uploaded by the User to the Platform or collected or processed by Cool+ as a result of Cool+ providing the User access to the Platform, including personal details such as name, address, date of birth, location, and email address.

14.2 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:

  1. the singular includes the plural and vice versa;
  2. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  3. the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; 
  4. a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and
  5. no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the licence agreement or the inclusion of the provision in the licence agreement.




Cool.org (Cool Australia) Website Terms and Conditions

(1) About these Terms

www.coolaustralia.org (“Website”) is operated by Cool Australia Limited as trustee of the Cool Australia Trust ABN 52 435 794 034 (“Cool Australia”, "Cool.org", “we”, “us, “our”). Cool Australia develops and produces Resources (including educational content) that are made available by Cool Australia for access and use via the Website for free.

These Terms form the agreement between Cool Australia and the user (User, you).

By accessing the Website and/or using the Resources, you accept, and agree to comply with, the Terms. If you disagree with the Terms, you should not access the Website and/or use the Resources. 

If you use content made available by Cool+, use of that content will be subject to a separate legal agreement between you and Cool+ on the terms set out at [insert link to Cool+ terms].

We may amend the Terms at any time, and we will notify you of any amendment to the Terms on our Website. 

(2) Intellectual Property Rights

2.1 Information, graphics, images, videos, advertisements and other content (“Material”) and Resources on this Website have been provided by a variety of agencies and stakeholder companies. Ownership of intellectual property rights in the Resources (other than in the material provided by third parties such as our sponsors), is owned by Cool Australia. The Resources may not be passed off as your own. Please do not frame any part of this Website without our prior written permission. 

2.2 Resources contained on this Website can be downloaded, copied and communicated by Users who are covered by statutory licensing arrangements with the Copyright Agency Limited (this includes schools, students, teachers and other educational institutions), for educational non-commercial purposes.  Otherwise, such information and/or Resources may not be copied, modified, distributed or otherwise exploited, without our prior written permission.

2.3 If you would like to republish versions of this Website in other publications, for example by using a picture of the Website home page, please contact Cool Australia directly by letter or as instructed in the Contact section of this website. These requests will be assessed on a case-by-case basis.

(3) User Restrictions

3.1 You must not use this Website and Resources in any way or for any purpose that is unlawful or breaches these Terms. 

3.2 You must not:

a. disrupt, damage, impair or interfere with the Website or any servers, software, hardware or equipment connected to it;

b. restrict or inhibit any other user from using or enjoying the Website;

c. attempt to bypass any firewalls associated with the Website, or to distribute or transmit junk or spam email that contains any Resources

d. distribute or transmit any virus or other harmful code on the Website or to any other user;

e. distribute any part of the Resources for commercial purposes; 

f. breach any applicable law regarding your use of the Website;

g. try to reverse engineer, decompile or disassemble any part of the Website;

h. try to modify, adapt, translate, or sell the Website, or any part of it or any Resources on it (other than your own materials or resources);

i. use the Website to undertake, show or distribute details of any non-Cool Australia competition, survey, scheme or chain letter or to falsely represent (i) your identity or (ii) that you are related to or affiliated with any other person or entity; and

j. access any part of this Website that you are not authorised to use (including but not limited to trying to circumvent any security measures put in place).

(4) User-Generated Content

4.1 You are responsible for:

a. the suitability, uploading, downloading, use, operation, communication, accuracy and legality of any content you upload, send or communicate to the Website (“Content”) and you acknowledge that Cool Australia does not monitor, install, configure, download, review, authorise, edit or alter such Content;

b. backing up your Content.

4.2 You authorise and license Cool Australia to copy, reproduce, communicate, distribute and display the Content for the purposes of providing accessibility to the Website and/or Resources and any associated services to you.

4.3 You warrant that the Content and your use and provision of it:

a. complies with all applicable laws;

b. is not obscene, indecent, unsuitable for minors, excessively violent, racist, misleading, deceptive or defamatory;

c. does not infringe any intellectual property rights or other rights of any entity or person;

d. does not include pornography, nudity, adult sexual content or any sex-related merchandising;

e. is not damaging to our servers or any other servers on the internet; and

f. does not include material or resources relating to hacking, viruses, anarchy, or that promote or participate in wilful harm to Internet sites or providers.

4.4 If you become aware of any Content in breach of the above, you must notify Cool Australia immediately at the contact details listed on this Website.  Cool Australia may without notice to you remove, amend, alter or deny access to any Content in our sole discretion if:

a. Cool Australia must do so by applicable law (including an order or judgment of a Court or tribunal or other competent body (such as a “take down notice” issued under the Broadcasting Services Act 1992 (Cth)); or

b. in Cool Australia’s opinion any such Content breaches clause 4.3 of these Terms or is, in our sole discretion, otherwise inappropriate.

(5) Monitoring access and downloads

For security, statistical, compliance, regulatory and other related purposes Cool Australia may: 

a. monitor the User's access to the Website and use of the Resources; and

b. record or otherwise capture data or other information relating to the User's access to the Website and use of the Resources (including username, country and location).


(6) Variation and availability

6.1 The User acknowledges that Cool Australia retains the sole discretion regarding the Resources and features, functions and other benefits that will be available within the Website from time to time and that: 

a. nothing in these Terms requires Cool Australia to provide or maintain any particular Resources or features, functions and other benefits of the Website;

b. Cool Australia may vary the Resources and features, functions and other benefits available to the User in respect of the Website at any time;

c. not all of the Resources and features, functions and other benefits may be available at all times;

d. some or all of the Resources and features, functions and other benefits may be unavailable due to scheduled outages and downtime, disaster recovery processes or due to circumstances beyond the control of Cool Australia; and

e. nothing in these Terms imposes obligations on Cool Australia to provide any services to the User in respect of the Website including (without limitation) development or customisation services, technical or user support, training or maintenance services.

(7) Advertisements

7.1 The Website may contain third party advertisements. Such advertisements do not in any way imply that Cool Australia endorses or recommends the advertiser, its products, services or websites (even if linked). You must deal with the relevant advertiser regarding the advertiser and its products and/or services. To the extent permitted by law, Cool Australia disclaims all responsibility for any interaction between you and the third party and has no liability in relation to such interaction.

(8) Cookies

8.1 During your use of the Website, we may issue to and request from your computer blocks of data known as “cookies”. By using this Website, you authorise us to issue such cookies to your device.

(9) Warranty
 

9.1 Cool Australia will attempt to ensure that Resources on this Website are correct, however we cannot guarantee its accuracy, suitability or completeness. The Resources are provided to you on an “as is” basis without warranties of any kind, either express or implied, subject to clause 11.3.

9.2 Without limiting clause 10.1 and subject to clause 11.3, Cool Australia does not warrant or guarantee, to the User that the Website and Resources:

a. will be uninterrupted or error-free; 

b. will be suitable or fit for any particular purpose;

c. is professional advice and to be relied upon as such;

d. will be accurate or reliable; or

e. will be compatible with any other computer software, computer hardware or other technology. 

9.3 This Website may contain links to other websites operated by third parties. Cool Australia does not make any representation as to the accuracy or suitability of any of the information contained on those other websites, and does not accept any responsibility or liability for, or give any endorsement in respect of, the conduct, content, products or services of those other websites or their operators.

(10) Limitation of Liability

10.1 To the fullest extent allowed by applicable law, Cool Australia, its directors, employees and suppliers will not be liable for any loss or damage whatsoever (including, without limitation, direct, indirect, incidental, special and/or consequential damages or lost profits) resulting from your use of or access to, or your inability to use or access, the Website and/or Resources.

10.2 If the User is a consumer as defined in section 3 of the Australian Consumer Law (Consumer) and Cool Australia supplies PDH Goods or Services to the user, Cool Australia acknowledges that the User may have certain rights under the Australian Consumer Law in respect of the guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by Cool Australia and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any such rights.

10.3 If the User is a Consumer and any goods or services supplied by Cool Australia to the User are non PDH Goods or Services, Cool Australia’s liability to the user in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at Cool Australia’s discretion) to: 

a. in the case of services:

i. the supply of the services again; or

ii. the payment of the cost of having services supplied again; and

b. in the case of goods:

i. the replacement of the goods or the supply of equivalent goods;

ii. the repair of such goods;

iii. the payment of the cost of replacing the goods or acquiring equivalent goods; or

iiii. the payment of the cost of having the goods repaired.


(11) Termination

11.1 Cool Australia may terminate these Terms and your access to the Website and/or Resources at any time without notice. In the event of termination, you must immediately cease accessing and using the Website and Resources. All restrictions imposed on you, licences granted by you, disclaimers and limitations of liability set out in the Terms will survive termination.


(12) Miscellaneous


12.1 Severability

If any provision of the Terms is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the Terms, which will continue in full force and effect. 

12.2 Governing law

The Terms are governed by and will be interpreted in accordance with the laws of Victoria, Australia and all disputes arising from the Terms will be subject to the exclusive jurisdiction of the courts of that State.

12.3 Privacy Policy

Cool Australia will collect, handle and store personal information (including personal information regarding the User and their access and Use of the Website and Resources) in accordance with Cool Australia’s privacy policy, a copy of which is available at https://cool.org/privacy-policy or by requesting a copy from Cool Australia.

(13) Definitions and interpretation


13.1 Definitions

In these Terms, unless the context otherwise requires:

a. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) (or any equivalent State or Territory legislation).

b. Content is defined in clause 4.1(a) of these Terms.

c. Data means the information and data generated by the Website or made available to the User through the Website.

d. PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.

e. Material is defined in clause 2.1 of these Terms.

f. Resource means any Material, content or Data created, developed, licensed or owned (whether in part or full) by Cool Australia, including lesson plans, online courses facts sheets, infographics, work sheets, student worksheets, teacher explainers, videos, how-to's and podcasts in relation to Australian school education, and which is made available for access, use and download on the Website, and Resources has a corresponding meaning.

13.2 Interpretation

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

a. the singular includes the plural and vice versa;

b. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

c. the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; 

d. a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and

e. no provision of these Terms will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms.