Damstra Technology (ABN 29 086 218 742 ) (“Velpic”, “we”, “our” and “us”) provides:
(a) its users; and
(b) where the context permits, its end user customers who receive the benefit of the Velpic Services, (each, an “End User”),
(together, “you” and “your”) with a variety of products, services, applications, tools and other resources (including our website at www.velpic.com and such other sites as we may offer from time to time (the “Sites”)) (all together, the “Velpic Services”) to enable you to collect information from visitors and End Users and to help you create, manage, deliver and track online courses. References to Velpic include any of its subsidiaries through which it carries on business.
Please read this Agreement carefully before proceeding with any use of the Velpic Services. By completing and submitting the signup form that refers to this Agreement or by logging in for the first time, you accept and agree to be bound by this Agreement.
If you do not accept the terms and conditions of this Agreement, please exit the Sites and cease using the Velpic Services immediately.
Velpic may modify the terms of this Agreement from time to time, and will endeavour to notify you of such changes via email or by displaying a message on the Sites when you next use the Velpic Services. By continuing to use the Velpic Services, you agree that your use will be governed by the updated terms of this Agreement.
From time to time, for various reasons including but not limited to the optimisation of the Velpic Services, Velpic may add, make changes to or remove altogether features or functionality of the Velpic Services. If you are using a mobile application, you may need to install a new or updated version before you can receive the benefit of those changes. Velpic will use all reasonable efforts to inform you of any changes to the Velpic System.
As a public business with a responsibility to deliver value to shareholders, Velpic is subject to the challenges, risks, opportunities and market forces every public business faces. In certain scenarios, Velpic may decide to stop providing all or some of the Velpic Services at any time. Nothing in this Agreement is to be taken as a guarantee that the Velpic Services will always be available, either in its current form or at all, or that we will support, maintain or continue to offer the Velpic Services or any version of them.
You must be 18 years or older in order to access and use the Velpic Services. By logging in to the Velpic Services, you are representing to us that you are at least 18 years old.
You agree to provide true, accurate, current and complete account information, and to maintain and promptly update your account information in order to ensure that it remains true, accurate, current and complete. Velpic reserves the right to refuse registration of users, or cancel accounts it deems inappropriate.
Velpic may use this information and any technical information about your use of the Velpic Services to tailor the user experience of, facilitate the use of the Velpic Services for you, or to communicate with you. We may also add your name and logo to marketing material (press release, advertising, etc.) so long as you are a customer of ours.
Velpic will not use any of your information, or any End User information, for any other purposes than those related to the Velpic Services and to the extent that we have your consent to use the relevant information.
Cancellation of Accounts
You are entitled to cancel your account with Velpic at any time. You may cancel your account by contacting us at firstname.lastname@example.org, or by sending written notice to Velpic, 243 Hay Street, Subiaco WA 6008, Australia. Cancellation will take effect from the next working day after we have received your notice of termination. Correspondence must include your first name, last name, and the email address used for your access to Velpic Services. If you cancel your account, you will not be entitled to any refund of Fees paid in advance.
Velpic may cancel or suspend your account with Velpic at any time if, in our sole discretion, you have committed a material or persistent breach of this Agreement or any other terms applying to your use of the Velpic Services. Cancellation or suspension of your account will be considered a final resort, and will follow a period of efforts to consult with you.
If your account is cancelled your account will be deactivated or deleted and your data may be deleted from our systems within 30 days after the date of cancellation. You may not recover your content once your account is cancelled. Any statutory retention requirements with respect to your data or information remain your responsibility, however Velpic, in our sole discretion, may be able to provide you with your data if you request it within 30 days of cancellation, at a time & materials cost to you of AU$150 per hour + GST.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranties, disclaimers and limitations of liability.
If you do not log into your account for more than 700 days, your account may be suspended at Velpic’s sole discretion and Velpic will flag that suspended account as being suspended. If your account is flagged as suspended, you will have 30 days from the date that the suspension is flagged to log in to your account again otherwise the account and its data, including End User signups, may be permanently removed from Velpic’s database.
Fees and taxes
To use the Velpic Services, and provided that you are not an End User, you must pay the fees set out in the pricing schedule (“Fees”) which you can access here (“Pricing Schedule”). All Fees for the Velpic Services are subject to change at any time. You are responsible for reviewing the Pricing Schedule from time to time and for remaining aware of the Fees charged by Velpic for the Velpic Services. Fees are charged in advance on a monthly or annual basis and to the extent permitted by law are nonrefundable in any circumstances, including if you only use part of a month or year’s subscription for the Velpic Services.
Except as otherwise specified in an Order Form, annual subscriptions will automatically renew for an additional twelve (12) month term, unless either party gives the other notice of non-renewal subject to clause four (4) of these Terms.
A valid credit card is required for paying all Fees, unless other payment arrangements have been made between you and an authorized Velpic representative. If Velpic is for any reason unable to effect automatic payment of the Fees, you will be notified via email and Velpic reserves the right to suspend your access to and/or use of the Velpic Services until you are current on your payments of the relevant Fees.
If you are carrying out a free trial of the Velpic Services, the free trial will begin on the day that your account is opened and end 30 days later. If you wish to continue using the Velpic Services at the end of the free trial period, you will need to provide valid credit card details and pay the relevant Fees.
All Fees are exclusive of taxes (other than GST payable in accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth)), and you indemnify and hold Velpic harmless against any claims by any tax authority for any underpayment of sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest in relation to the Fees that are paid or payable by you.
Upgrading or downgrading your account
You may upgrade or downgrade your account at any time by following the prompts when you are logged into your account.
Any downgrade will become effective immediately. If you downgrade your account, no refunds will be paid in respect of any unused portion of any higher account offering.
Any upgrade will become effective immediately. If you upgrade your account, any Fees that you have paid in advance will be credited to your new upgraded account. Velpic will then charge your credit card on your next standard invoice date for any net amount due as a result of the upgrade.
Downgrading your account may cause the loss of content, or features or capacity of your account. If you choose to downgrade your account, Velpic does not accept any liability for the resulting loss of data, content, features or capacity.
Velpic Services are provided “as is”
The Velpic Services are provided on an "as is" and "as available" basis, and your use of them is at your sole risk. Velpic will try to promptly address (during normal business hours) all technical issues that arise in connection with the Velpic Services.
We do not warrant that: (a) the Velpic Services will meet your specific requirements; (b) the Velpic Services will be uninterrupted, timely, secure, or errorfree; (c) the Velpic Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the Velpic Services will meet your expectations; or (e) any errors in the Velpic Services will be corrected.
You acknowledge that Velpic may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the Velpic Services and that the Velpic Services may be subject to limitations, delays and other problems inherent in the use of such services provided by third party suppliers. The delays, problems, acts and omissions of those third party suppliers may be outside of Velpic’s control, and Velpic does not accept any liability for any loss or damage suffered as a result of any delay, problem, act or omission of any third party supplier.
On behalf of itself and such third party suppliers, Velpic excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.
You acknowledge that in order to use the Velpic Services, you require a modern browser such as Internet Explorer 11, Firefox 47, Safari 9 or Google Chrome 44 and a stable connection to the Internet. The Velpic Services may work in a limited manner on other web browsers (such as earlier versions of the previously mentioned browsers), but the Velpic Services were not designed for use on web browsers other than those recommended above.
Both the number of online courses you create, manage, deliver and track and the number of kilobytes of data transferred when creating, managing, delivering and tracking courses are metered by Velpic.
If you have a paid subscription version of the Velpic Services, you must adhere to the usage limit displayed on the Pricing Schedule for the paid subscription version you have purchased. You are responsible for reviewing the Pricing Schedule from time to time and for remaining aware of the usage limits set by Velpic for the Velpic Services. If you have reached your usage limit for the associated subscription period as set out in the Pricing Schedule, Velpic will use reasonable endeavours to contact you and request you to upgrade your paid subscription to the next level. Your access to the relevant Velpic Services may be suspended until you have upgraded to the next subscription level or until the start of the next subscription period, whichever comes first.
Website and Velpic Services availability
You acknowledge that the operation and availability of the system used for accessing the Velpic Services can be unpredictable and that down-time of the Velpic Services themselves, either scheduled or unscheduled, may occur from time to time. Velpic will work within reason to ensure this amount of downtime is limited. Velpic will not be held liable for the consequences of any downtime.
Velpic cannot guarantee that any file or program available for download and/or execution from or via the Velpic Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You acknowledge that you assume all risk of use of all programs and files associated with the Velpic Services, and you will not hold Velpic responsible for any consequences of its use.
The Velpic Services may be accessed throughout Australia and overseas. Velpic makes no representations that the Velpic Services comply with the laws (including intellectual property laws) of any country outside Australia. If you access the Velpic Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the site.
To the maximum extent permitted by law, under no circumstances shall Velpic or any of its officers, staff or agents, be liable to you or any other person for any loss or damage (including but not limited to direct, indirect exemplary, special, incidental, cover, reliance or consequential damages, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits or business opportunities), or for any claim by any other party.
Velpic’s limitation of liability applies whether the claim is in contract, tort (including without limitation, negligence) or equity and even if Velpic has been notified of the possibility of such loss or damage.
If, despite the foregoing paragraphs, Velpic is found to be liable to you for any loss or damage, then Velpic's maximum aggregate liability under or in connection with this Agreement or your use of the Velpic Services is limited to the amount of Fees paid by you in the 12 months prior to the date upon which your claim arose. You agree that Velpic’s liability to you at law will be reduced by the extent, if any, to which you contributed to the loss.
This is an Agreement for the Velpic Services, and you are not granted a licence to any software under this Agreement. Except solely to the extent that applicable laws prevent Velpic from doing so, you will not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Velpic Services or any software, documentation, or data related to the Velpic Services (the “Software”); (ii) remove any proprietary notices or labels from the Velpic Services or any Software; (iii) reproduce or copy the Software or the Velpic Services or any part thereof; (iv) modify, translate, or create derivative works based on the Velpic Services or any Software; or (v) copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Velpic Services or any Software.
The Velpic Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Velpic Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Velpic Services in any country in the European Economic Community or Australia, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Velpic Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs or the Australian Copyright Act 1968 (Cth).
You may not publish or use Velpic’s brand, branding or logos without the prior written consent of Velpic. Your use of the Velpic Services confers no title or ownership in the Velpic Services, and is not a sale of any rights in the Velpic Services. All ownership rights remain in Velpic or its third party suppliers, as applicable.
You are responsible for all activity that results from use of the Velpic Services through your account.
You are responsible for maintaining the security of your account, username, passwords, and files and for all uses of your account and of the Velpic Services in your name. Velpic will not be liable for any loss or damage that may result from any failure to keep usernames and passwords secure.
You are solely responsible and liable for all content, materials, and information that you upload and/or transmit using or relating to the Velpic Services.
You acknowledge and agree that: (a) through your use of the Velpic Services you may be exposed to content from a variety of sources, and to content that is inaccurate, offensive or objectionable; (b) Velpic is not responsible for the usefulness or accuracy of such content; and (c) notwithstanding anything to the contrary in this Agreement, Velpic does not assume any liability, and to the maximum extent permitted by law, will not be liable, for any content uploaded to, accessed via, and/or sold or made available through, the Velpic Services, whether by Velpic or any third party.
You are responsible for making sure that all End Users that access the Velpic Services through your account are given, comply with, and accept terms between you and your End Users that incorporate the terms of this Agreement that apply to you. You acknowledge that you are solely responsible for your End Users’ actions while using the Velpic Services and agree to indemnify and defend us from any claims, demands or lawsuits of any kind arising from your End Users’ breach of this Agreement, and for any claim brought against us by your End Users for any reason whatsoever.
You acknowledge that by using the Velpic Services, you agree to receiving communications from us in relation to the Velpic Services and other services that we offer, including marketing communications. If you do not want to receive these emails, please either notify us directly or follow the instructions contained within the email to request that you be removed from any mailing list not essential to the Velpic Services. Velpic will remove you at your request.
The Velpic Services may contain materials produced or provided by third parties or links to other websites. Such materials and websites are provided by third parties and are not under Velpic’s direct control and Velpic accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Velpic Services). You acknowledge that Velpic is entitled to require you to remove any link from another website to the Velpic Services which you install without obtaining Velpic’s prior written consent.
You indemnify Velpic against all forms of liability, actions, proceedings, demands, costs, charges and expenses which Velpic may incur or suffer as a result of use of the Velpic Services through your account or as a result of your failure to comply with this Agreement.
No malicious or illegal use
You will not violate or attempt to violate the security of our website or the Velpic Services. You will not hack into the Velpic website(s), Velpic’s computer systems or the computer systems of other users of the Velpic Services. Hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
You must not use the Velpic Services to store, distribute or publish racist, abusive, discriminatory, defamatory or sexual content, content glorifying violence or other illegal content in violation of any applicable laws, content that we deem inappropriate in our sole discretion, or content that infringes the intellectual property rights or other rights of any third party.
Velpic reserves the right, but has no obligation, to monitor any and all content and your use of our Velpic Services. Velpic may, in our sole discretion, remove any content and/or suspend or terminate your use of the Velpic Services for any reason (including, without limitation, any alleged breach of any term of this Agreement), and you are not entitled to any refund or credit relating to such removal, suspension or termination. Removal of content, suspension or termination of your use of the Velpic Services will be considered a final resort, and will follow a period of efforts to consult with you.
You acknowledge that Velpic owns or has the right to use all property in the Velpic Services, including all copyright, trademarks, design rights, moral rights, service marks, trade names, know-how, confidential information, patents, licences, inventions and other intellectual property rights in the Velpic Services (our “IP”). You may not reproduce any of the content on our Sites without getting our permission in writing. You do not have any rights to our IP except granted under this Agreement or any other agreement you have with us. You agree not to challenge or do anything inconsistent with such ownership.
You own, or warrant that you are authorised to use, the intellectual property rights in any data you submit to the Velpic Services.
All information relating to the Velpic Services that could reasonably be considered by its nature to be confidential will be treated by you as confidential unless we give our permission for you to use the information, or the information is in the public domain otherwise than by a breach of this Agreement.
You agree to notify us immediately if you become aware that any person may have unauthorised knowledge, access to or use of the Velpic Services.
Your obligations under this clause will survive termination of this Agreement.
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Velpic and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Velpic in any respect whatsoever.
In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and legal fees.
The Agreement shall be governed by the laws of the State of Western Australia without regard to its choice or law or conflict of law provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Perth, Western Australia, Australia.
Velpic will not be liable by reason of the failure in the performance of obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond Velpic’s reasonable control.