Blue Flame Social Media ABN 70 850 926 405
(Blue Flame Social Media, “us”, “we”)
(User, “You”, “Your”)
A. Blue Flame Social Media has developed the Courseware which they provide via the Platform to End Users.
B. The Courseware allows End Users to learn what a professional social media agency does to generate success for their clients, what you specifically should be doing, and how to do it.
C. You wish to create an Account to access the Platform and engage with the Courseware.
D. You agree to be bound by the terms and conditions within these Platform Terms, and any other documents under reference.
Unless the terms and conditions of the Platform Terms explicitly state otherwise, expressions used in the Platform Terms have the following meanings:
Account means the End User’s account to use the Platform, including your account.
Business Day means a day (other than a Saturday or Sunday) upon which banks are ordinarily open for business in Brisbane, Queensland, Australia.
Commencement Date means the date that the End User completes the Account Sign-Up.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to the:
(a) personnel, policies, practices, clientele or business strategies of the parties;
(b) Intellectual Property Rights of either party;
(c) the terms of the Platform Terms;
but does not include information:
(d) already rightfully known to the receiving party at the time of disclosure by the other party; or
(e) in the public domain (including information made publicly available via a mechanism in the Platform by you) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Platform Terms.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, loss in relation to taxation or other punitive actions by a regulator, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Consumer Law means the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Content means the software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to or from the Courses, Courseware and Services, as well as the design and appearance of our websites. All Content is either owned by us or our licensors, or is licensed to us and our licensors pursuant to these Platform Terms or any other agreements in writing as may be applicable from time to time.
Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
Course means the training and courses which we develop for the Platform and offer to End Users.
Courseware means the material which relates to a Course purchased on the Platform.
End User means an individual who completes the Account Sign-Up process and accesses the Platform in any capacity or on any device.
Fee means any amount payable by you to us in connection with the Platform Terms.
Insolvency Eventmeans in respect of a party:
(a) the appointment of an administrator, a receiver or receiver and manager in respect of that party;
(b) an application to a court or an order for the winding up of the party; or
(c) the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
Intellectual Property means all intellectual property, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), eligible circuit layout rights, domain name licences, know-how, trade secrets, code, software, repositories, specifications, formula, technical know-how, documentation.
Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to Intellectual Property, including the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Malicious Code means any code, program, script, software, file, thing or device which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including viruses, exploits, malware, logic bombs, denial of service attacks, flood or mail bombs, back-doors and other similar things or devices.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Platform means the learning management system which hosts the Courses and provides access to the relevant Courseware.
Platform Terms means the terms and conditions set out in this document and agreed to by you, as amended from time to time.
Privacy Law means:
(a) the Privacy Act 1988 (Cth); and
(b) any code registered under the Privacy Act 1988 (Cth) or Australian Privacy Principles.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.
Service means any service we provide by way of the Platform, the Website and in connection with the Platform.
Submitted Materials means any material including documents, information or data provided by you to us in connection with the Platform and Service.
Unforeseen Event means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.
Website means our website located at https://www.blueflamesocialmedia.training.
In these Platform Terms:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention:
(b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
(c) the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(e) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(f) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
(g) references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of these Platform Terms, and a reference to these Platform Terms includes any schedule, exhibit or annexure to these Platform Terms;
(h) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(i) references to payments to any party to these Platform Terms include payments to another person upon the direction of such party;
(j) all payments to be made under these Platform Terms will be made through a third-party payment provider (Simplify) or by other immediately available funds;
(k) the word “includes” in any form is not a word of limitation;
These Platform Terms will commence on the Commencement Date and will continue:
(a) for as long as you hold an Account with us; or
(b) until the date of termination of these Platform Terms in accordance with clause 18.
2.2 Continuing Agreement
(a) We regularly update, upgrade and change our Platform. These Platform Terms are also regularly updated to keep up with our changing Platform and any relevant legislation.
(b) By using our Platform, you are agreeing not only to the terms and conditions of the Platform Terms as they stand, but will, by your continued use of the Platform, also be considered by us as consenting to any updates or changes to our Platform Terms as we publish them, both within the Platform and online at this URL – (https://www.blueflamesocialmedia.training/terms-and-conditions/ ).
(c) You warrant to us that you will regularly check the Platform Terms and ensure that you are satisfied with the terms. Where you are not, your sole and exclusive remedy is to cease using the Platform.
We grant to you a limited, non-transferrable, non-exclusive and revocable licence to access, use the Platform and upload data to it, subject to the terms and conditions of these Platform Terms.
3.2 Licence Conditions
The grant of the licence in clause 3.1 is subject to and conditional upon:
(a) successfully completing the Account Sign-Up;
(c) your continued acceptance of these Platform Terms as amended and updated from time to time; and
(d) you complying with our reasonable directions at all time.
3.3 Licence Restrictions
The grant of the licence in clause 3.1 is subject to the following restrictions:
(a) you must comply with the obligations set out in clause 8 (Your Obligations);
(b) you must comply with all requirements listed in these Platform Terms, other referenced documents, relevant legislation and any lawful directions we give you;
3.4 Our right to suspend
We reserve the right to limit or suspend your license to use the Services or Platform if you breach any of your obligations in these Platform Terms.
We grant to you a limited, non-transferrable, non-exclusive and revocable licence to access any Courses which you hold a valid subscription to subject to the terms and conditions of these Platform Terms.
4.2 Purchasing a Course
(a) We may permit the purchase of Courses both directly on the Platform and through the Website.
(b) Prior to purchasing a Course, you must ensure that:
(i) you have considered all information available about the Course;
(ii) it meets the purpose for which you wish to undertake it; and
(iii) you are satisfied with the information provided about the Course and are fully prepared to purchase it based on that basis.
(c) Your purchase of a Course (including any subscription) is final and will not be refunded.
(a) Course content may be delivered via text, audio, video and by any other means which we deem appropriate from time to time.
(b) All Courseware will only be provided via the Platform.
(c) You’ll need a working internet connection to engage with the Courseware. This is your responsibility and we won’t provide a refund if your connection is not of a sufficient quality to undertake the Courses.
(d) Course content and Courseware is by necessity general in nature and won’t be tailored for your specific situation. We make no assurances that it will be fit for any particular purpose.
(a) You acknowledge and agree that:
(i) due to the digital nature of a Course, purchase of a Course is non-refundable;
(ii) your purchase of a Course shall be considered as a irrevocable warranty that you are fully satisfied with the terms of the purchase and understand what it is you are purchasing;
(iii) we make no guarantees that any Course will be fit for a particular purpose and you will not be purchasing a Course based on any particular statement, information or assurance from us;
(iv) your outcome from a Course is entirely up to the effort you put into engaging with the Courseware and content;
(v) we take no liability or responsibility for your failure to achieve any particular outcome or goal from your purchase of the Course, and you expressly release us from any obligation for this;
(b) You indemnify us fully for your failure to comply with any of your obligations under these
Platform Terms, including those in this clause 4.
You acknowledge and agree that we may subcontract any of our obligations of these Platform Terms to a third party (or multiple third parties) without notification to or consent from you.
You have no authority to act for or bind us except as specifically provided in these Platform Terms or with our express written consent.
6. Submitted Material
6.1 Submitted Material
(a) You must not submit or cause to be submitted to the Platform or Services any of the following:
(i) any material which:
(A) you do not own or have the right to use;
(B) is illegal, unlawful, improper, harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
(C) infringes the Intellectual Property Right of a third party;
(D) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(E) causes damage or injury to any person or property;
(ii) any confidential information of any third party which you have not obtained the express consent of the third party for;
(iii) would breach any privacy, security or anti-money laundering obligations, such as duties under the Privacy Law; or
(iv) any sensitive Personal Information or data which you do not wish for any employees of ours to have access to;
and we reserve the right, without incurring any liability to you, to disable your access to any material that we consider, in our sole discretion, breaches the provisions of this clause (or, if we deem it necessary, the Services).
(b) You grant us a non-exclusive, royalty free license to use any material supplied by you in connection the Platform for our commercial and business purposes, including the commercial and business purposes of any of our associated bodies corporate.
(a) You will pay us any Fees which are required for any paid Courses or Platform functionality you subscribe to from time to time.
(b) All amounts and fees stated or referred to in this agreement are:
(i) non-cancellable and non-refundable (subject to clause 16.1(d)); and
(ii) inclusive of GST, which shall be shown on our invoice(s) at the applicable rate.
(c) You must register a valid payment method on the Platform to gain access to any Courses, functionality or Content which requires the payment of a Fee.
7.2 Our right to change Fees
We may amend the Fees at any time.
7.3 GST Wording
Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
7.4 Payment Gateway Provider
(a) We use the third party payment gateway provided by Commonwealth Bank of Australia (ABN 48 123 123 124) (Simplify) for secure online payment transactions.
(b) Payment for orders placed through this site may be made using the secure Simplify payment gateway or using an Simplify account, in any of the methods which they support from time to time.
(d) Unless you expressly consent otherwise, we do not see or have access to any personal information that you may provide to Simplify, other than information that is required in order to process your order and deliver the Products to you (eg, your name, email address and billing/postal address).
(e) It is not necessary to have a Simplify account in order to make a purchase on this site. Simplify accepts all major credit and debit cards.
(f) We may be unable to accept credit cards issued by banks outside of Australia in some cases. We do not charge additional transaction fees for paying by credit card, however Simplify may charge additional fees.
(g) Except as expressly provided otherwise in these Terms, all amounts paid through this site are non-refundable.
(h) While Simplify and our website hosting providers employ secure technology for transactions with our customers, we will not be responsible for any damages, including consequential losses (whether direct or indirect), that may be suffered by a customer whose credit or debit card or bank account information is used in a fraudulent or unauthorised manner by any person other than us.
(i) We may request further information from you, such as a copy of your credit card and/or other identification documentation, as part of our internal validation procedures. These procedures help protect bank and credit card account holders from online fraud.
(j) Until your order has passed our internal fraud prevention checks, your order will remain on pending status. If further information is requested and you do not provide the requested information within such time as we consider appropriate (in our discretion), your order will be cancelled and, if your payment has been received, it will be refunded back to you.
7.5 Gift cards and discount codes
(a) From time to time and at our sole discretion we may make available to you the use of discount codes and redeemable gift cards.
(b) Discount codes and gift cards are redeemable when you place your order and on the conditions upon which those discount codes and gift cards were offered.
8. Your Obligations
8.1 Positive Obligations
During the term of the Platform Terms, you must:
(a) not to do anything which will have an adverse effect on us, the Services or Platform;
(b) comply with any and all terms and requirements of the Services outlined in these Platform Terms;
(d) ensure that you do not (in your use of the Services) breach any laws, regulations, policies or other legal instruments;
(e) do all acts and things necessary to ensure that you do not breach the terms of these Platform Terms; and
(f) not publish or otherwise communicate any review of, or information about, the Services (which is not publicly available) to any third party without the prior written consent of us, except as specifically provided for in an agreement with us, including these Platform Terms.
You will be responsible for the breach of any obligation in this clause except to the extent the breach is caused by our negligent act. The above obligations apply to any use of your Account, including use by any third party. You agree to be responsible for any breach of these Platform Terms, including this clause 8.1, where that breach occurs through use of your Account, regardless of whether you actually committed the breach or not.
Except as we expressly permit under these Platform Terms, you shall not:
(a) access all or any part of the Services in order to build a product or service which competes with the Services;
(b) use the Services to provide services to third parties;
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Services available to any third party;
(d) take any action which imposes or may impose (in our judgement) an unreasonable or disproportionately large load on our, or our third-party providers’, infrastructure;
(e) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
(f) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and Platform (as applicable) in any form or media or by any means; or
(g) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
(h) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
(i) attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this agreement; or
(j) otherwise take any action in violation of any guidelines, policies or supplemental documentation which shall be applicable to the Services from time to time.
and shall not permit any other person to do the above acts, howsoever related to you.
8.3 Fair Use
You shall not use, or permit any other person to use:
(a) any method to circumvent the provisions of this agreement or to obtain Services in excess for those in which you have purchased or are allowed in the normal operation of the Platform; and
(b) any mechanism to exceed the amount of resources assigned to you (or conceal any such activities).
8.4 Our right to suspend
We reserve the right to limit or suspend the access of any individual or association to the Services if any individual or association is in breach of this clause 8.
(c) We reserve the right to immediately terminate these Platform Terms if you are in breach of this clause 9.
9.2 Privacy Obligations – Blue Flame Social Media
If Personal Information is disclosed to us in the course of these Platform Terms, we agree that we will not:
(a) sell the Personal Information to any third party in a form which has not been sufficiently de-identified so that it no longer represents information by which the End User could be personally identified by the third party; or
(b) distribute or disclose identifiable Personal Information to any third party other than:
(i) to our personnel and/or related bodies corporate;
(ii) service providers who require the information in the provision of providing services to us;
who will only use the Personal Information for the purposes contemplated by these Platform Terms.
9.3 Privacy Obligations – End User
If Personal Information is disclosed to you in the course of these Platform Terms, you agree that you will not:
(a) sell the Personal Information to any third party in any form; or
(b) distribute or disclose Personal Information to any third party other than:
(i) to your personnel and/or related bodies corporate; or
(ii) service providers who require the information in the provision of providing services to you;
who will only use the Personal Information for the purposes contemplated by these Platform Terms.
9.4 No Warranty
(a) We make no warranties or guarantees that the manner in which we manage Personal Information is compliant with any foreign privacy laws and it is your sole and absolute responsibility to ensure you are compliant with any foreign privacy laws in your use of the Platform.
(b) In the event that you request changes to the Services in order to achieve compliance, you acknowledge and agree that you will be liable for all work performed by us.
9.5 The Privacy Act
For the purposes of this clause 9 the term disclose is to have the same meaning as defined in the Privacy Act 1988 (Cth).
10. Intellectual Property
10.1 Our Intellectual Property Rights
(a) All title, ownership rights and Intellectual Property Rights, including copyright in relation to the Courses, Courseware, Service and the Platform is owned or used under licence by us.
(b) Without our express prior written consent, you undertake that you will not and will not permit any person to:
(i) interact with our Intellectual Property or trade mark(s) (whether registered or not) that could cause any adverse effect to our ownership and/or rights to the intellectual property; or
(ii) copy or reproduce, or create an adaptation or translation of, all or part of the Courseware or Platform in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Courseware or Platform in accordance with these Platform Terms;
(iii) incorporate all or part of the Platform or Courseware in any other webpage, site, application or other digital or non-digital format;
(iv) (subject to other rights explicitly granted under these Platform Terms) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Platform on any medium;
(v) do anything that will infringe the Intellectual Property Rights of us or any third party; or
(vi) attempt to do any of the above.
(c) You acknowledge and agree that all Intellectual Property rights in:
(i) the Courses, Courseware, Service and Platform and any other material developed by us under these Platform Terms; and
(ii) any improvements, modifications or enhancements to the Courses, Courseware, Services or Platform, and any other material developed by us in the course of providing the Services,
will vest in and are owned by us upon creation, even if based on your new feature request or user feedback.
10.2 Your Intellectual Property
Subject to clause 10.1 and any other provisions of these Platform Terms, you shall retain ownership of any Submitted Material.
10.3 Threats and action
If you become aware of any infringement or threatened infringement of any Intellectual Property Rights, you must give us notice pursuant to clause 22.1, including full particulars of the infringement. We may, in our absolute discretion, institute and prosecute an action against the infringer.
10.4 Provide all assistance
You must execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by us under this clause.
10.5 Survival of Obligation
The operation of this clause survives the termination of these Platform Terms.
10.6 Publicity Rights
For these Platform Terms, and subject to any ongoing right of revocation notice, you grant us, and our contractors and agents, a non-exclusive licence to:
(a) use your logo, trade marks and other branding rights to advertise or promote the Services;
(b) publish general case studies describing your use of the Services in general terms for academic and promotional purposes; and
(c) display, link to, or promote your business as part of our portfolio.
11.1 Platform Functionality
(a) The Platform is designed for End Users like you to learn about various parts of social media advertising by enrolling in and consuming Courses.
(b) Our role in providing the Platform is as developer, facilitator and administrator only. We don’t perform any functions other than those expressly set out in these Platform Terms.
11.2 Hosting the Platform
(a) You acknowledge and agree that:
(i) parts of the Platform and Services are accessible online and are built as ‘cloud-based’ applications;
(ii) we require elements of the Platform to be hosted by a third-party provider; and
(iii) this is reasonable considering the nature of the Platform and Services, and that we would not be able to deliver the Services in their current or future form and to the standard necessary if we did not utilise the hosting services of third-party providers.
(b) We use Thinkific (https://www.thinkific.com) as a third-party provider for elements of the Platform and delivery of the Services. Servers are:
(i) managed and maintained by Thinkific;
(ii) where possible, located in Australian data centres; and
(iii) secured by Thinkific software and technology.
(c) You release and indemnify us fully for any damages you incur as a result of the mismanagement, negligence or any other acts or omissions by Thinkific in their provision of servers, hosting and cloud technology to us.
(d) You acknowledge that as Thinkific is a reputable and ‘enterprise-grade’ vendor, our use of their services and reliance on their technology is reasonable in the circumstances. If you do not agree with this assertion at any time, your sole and exclusive remedy is to terminate your use of the Platform and Services. Your continued use of the Services and storing of your data (including Personal Information and Submitted Material) is taken as a current and continuing agreement to the acknowledgements in this clause 11.2.
(e) We reserve the right to nominate a different server, third-party provider or cloud-based architecture at any time in our sole discretion.
11.3 Parts of Platform not locally available
You acknowledge and agree that parts of the Platform will only be accessible using the internet (or other connection to third party servers) and will not be available “locally” from your own servers or within your own local operating system environments.
11.4 Parts of the services controlled by third parties
You acknowledge and agree that the Platform is operated from servers owned and controlled by a third party. As such, you acknowledge that certain functions are out of our control, including (but not limited to):
(a) cloud services for servers;
(b) proprietary and internal code, which may include bugs, errors and exploits;
(c) actions by malicious, state-sponsored and hostile actors;
(d) hardware and connection failure; and
(e) data storage and backup.
11.5 Change of Services
We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Services (including offering new Services) at our sole and absolute discretion.
11.6 Unintentional inaccessibility
(a) From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the Services as soon as practicable. Nothing in this agreement gives us any obligation or liability to you in any way whatsoever for unintentional inaccessibility.
(b) We make no guarantees as to the uptime or availability of the Services or Platform. You acknowledge that you will always ensure that you have means through which to access any material you have submitted to the Services
11.7 Intentional inaccessibility
We reserve the right to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates. We will use reasonable endeavours to provide you with advance notice of any inaccessible period but you accept that this may not always be possible and we are not liable for any harm or damage you may suffer during an interruption.
(a) You acknowledge and agree that there may be technical or administrative errors in the information on the Platform.
(b) We reserve the right to do any of the following, at our absolute discretion, without notice:
(i) correct any errors in the Platform;
(ii) make the Platform or Services inaccessible to work on errors;
(iii) update the Platform;
(iv) remove and/or replace parts of the Platform;
(v) move or re-organise data from one part of the Platform to another; or
(vi) any other act or thing reasonably necessary to ensure that errors are corrected, and the Platform continues to operate as intended.
11.9 Security Responsibilities
We will take reasonable steps to ensure that the Platform is secure from unauthorised access consistent with generally accepted industry standards in our industry. For clarity, these obligations shall only include taking reasonable measures to:
(a) secure our physical premises from unauthorised access;
(b) restrict access to critical parts of Service infrastructure to employees, contractors and third parties who are required to have access; and
(c) implement recommendations from advisors provided to us from time to time in relation to securing the Platform and Services.
11.10 Publishing of Content & Service Data
Except as expressly permitted through these Platform Terms, you must not publish, share or otherwise disseminate any content, data, graphs, visualisations or information provided to you through the Services outside the confines of the Platform without our written permission.
11.11 Delivery of Support and Maintenance
We will provide support services in respect of the Services via email only and will endeavour to respond within 72 hours (if that time period falls on a Business Day) or otherwise as soon as possible thereafter.
12.2 Required Information
(a) In your use of the Services, we may require Personal Information to:
(i) ensure we can appropriately interact with third-party applications;
(ii) comply with any applicable laws and regulations, including any anti-money laundering, counter-terrorism or know-your-customer (KYC) requirements.
(b) The Personal Information you may be required to provide for the continued use of the Platform and Services may include (but is not limited to):
(i) Full name;
(ii) Email address;
(iii) Postal and/or residential address;
(iv) Payment details; and
(v) other more particular Personal Information.
12.3 Storage of Data
All Service and Platform data is backed up regularly using Thinkific’s backup procedures. While we make all efforts to ensure that backups occur regularly, we make no guarantees that data provided to the Services will be backed up at any particular interval of time, nor that the backups are safe from hostile, malicious or state-sponsored cyber-attacks.
12.4 Use of Data
(a) By using the Platform and providing Submitted Material and End User data in your interaction with the Services, you understand, acknowledge and agree that we:
(i) may use that data in any way necessary to ensure you have the appropriate access and use of the Services;
(ii) may aggregate, distribute, prepare derivative works of, display, perform or otherwise use the data in connection with the Services, Platform or our business;
(iii) may share data with any third parties to whom we rely upon in providing the Services or running the Platform;
(iv) may share data with any third parties to whom you allow within your account as an Integration;
(v) may use your data to provide better recommendations and targeted advertising within the Services;
(vi) may share data with any of our related bodies corporate for the purposes of furthering our commercial and business interests; and
(b) You grant us an irrevocable, perpetual, non-restrictive, royalty free, transferable, assignable worldwide, fully paid, sublicensable license to use any data you provide to us in your use of the Services for the purposes listed in clause 12.4(a) and any other purposes listed in these Platform Terms. This license shall survive the termination of these Platform Terms.
(c) For clarity, the above license in clause 12.4(b) does not affect your other ownership or license rights in the Submitted Materials, including the right to grant additional licenses in writing, unless otherwise agreed. You represent and warrant that you have, and will continue to have, all necessary rights to grant the licenses in this clause 12 without infringing or violating any other rights (including Intellectual Property rights), assignments, licenses or agreements which may apply to the Submitted Materials.
(d) We reserve the right to access, read, preserve and disclose any information we believe is reasonably necessary to:
(i) satisfy any applicable law, regulation, legal process or governmental request;
(ii) enforce these terms, including investigation of potential violations;
(iii) detect, prevent, or otherwise address fraud, security or technical issues;
(iv) respond to user support requests; or
(v) protect the rights, property or safety of us, our users and the public.
12.5 Data Exporting
(a) While the Services and Platform may allow users to export certain aspects of the Submitted Material, nothing in these Platform Terms should be construed as an entitlement to export Submitted Material from the Services at will.
(b) The ability to remove any Submitted Material or other content on the Services which relate to an End User in a downloadable and/or human readable format is wholly dependent on:
(i) the current functionality of the Platform;
(ii) the status of any servers, infrastructure or other storage medium used to deliver the Services; and
(iii) our absolute discretion to enable export functionality from time to time.
12.6 End User acknowledgements
You acknowledge and agree that:
(a) the Services may be subject to limitations, delays and other problems inherent in the use of communications facilities (such as network outages, congestion and hardware failures);
(b) we may perform periodic penetration testing on the Services to satisfy our internal security standards;
(c) Information you request from us may not be available or may not be provided at the time of request, and we don’t guarantee that any information provided will be comprehensive or complete;
(d) unless otherwise agreed to in writing, you shall be responsible for the preservation of your data, including any Submitted Material. Even where we do provide backup services, you must also take measures to safeguard and secure your data. Unless agreed in writing, you acknowledge and agree that we shall have no responsibility to preserve any data and no liability for any data, including Submitted Material, which may be lost or unrecoverable; and
(e) we will not be responsible for you having appropriate devices and internet connections to access the Services. We will not be responsible for any physical devices, internet connections, communications or anything else used to connect or access the Services.
12.7 Platform Limitations
The Platform is:
(a) provided on an ‘as is’ basis; and
(b) not designed to perform any functions outside those expressly advertised.
13.1 Sufficient Security
You shall use proper security measures in connection with your use of the Services. This shall include (but not be limited to) the following:
(a) setting strong passwords and access control mechanisms;
(b) safeguarding access to all logins and passwords (preferably with an industry-grade two-factor or hardware authentication system);
(c) verifying the trustworthiness of persons with account access information; and
(d) implementing any relevant procedures recommended by the Department of Industry, Innovation and Science (see – https://www.business.gov.au/Risk-management/Cyber-Security) and the Australian Cyber Security Centre (see – https://www.acsc.gov.au/ and https://cyber.gov.au) from time to time.
13.2 Notifiable Data Breaches
You shall notify in the manner specified in clause 22.1 within 48 hours if you learn of any security breaches relating to the Services. If the breach(es) could constitute a Notifiable Data Breach under Part IIIC of the Privacy Act, you shall notify us within 3 hours of the breach (suspected or confirmed) coming to your attention. You shall aid us fully in any subsequent investigation or legal action taken as a result of the breach.
13.3 Malicious Code
It is your responsibility to protect your systems and the areas of the Services which are under your control from Malicious Code.
13.4 Internet Services
You are responsible for the security of any and all internet connections used to access the Services, and the security of any device on which the Services are accessed.
13.5 Cyber Attacks
While we may take reasonable measures to secure the Platform and the infrastructure on which the Services run from cyber-attacks and Malicious Code, new attack vectors and exploits are created or used by malicious actors every day. By using the Services, you acknowledge that we cannot be expected to anticipate these new vectors but can only employ industry-standard measures to mitigate the risks. Where we are actively employing measures to combat cyber-crime and an exploit or data loss occurs, you agree to hold us completely harmless for any consequences of same.
You release and indemnify us for any claim, action or liability resulting from your failure to comply with this clause 13.6. You acknowledge that while we may secure the Platform as part of the Services, we are unable to protect you from a failure to properly secure your systems and practice good digital hygiene.
14. Third Party Content and Services
14.1 Accessing Linked Content and Services
(a) The Services may permit you to link to or access other websites, services or resources on the internet. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we’re not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any link or integration to third party services does not imply our endorsement or any association between us and their operators.
(b) You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused (or alleged to be caused) by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
(c) We will not be responsible for any third-party advertising content displayed on the interface of the Platform. Any link on the Platform to a third-party website, or decision to accept any third party offer, is entirely at your own risk.
14.2 Third Party Integrations
(a) In delivering the Services, we may offer augmented functionality through interfacing, providing or obtaining data, or otherwise co-operating with a third party and their software and/or services (Integration).
(b) Several of the Integrations may have access to some Submitted Material, Personal Information and End User data. By using the Services, you expressly authorise us to provide any Submitted Material, Personal Information and End User data to Integrations for the purpose of providing the Services.
(c) You acknowledge that the third parties who control the Integrations may:
(i) use Submitted Material, Personal Information and End User data to improve their services;
(ii) to the extent permitted by law, use, sell, license, distribute and disclose de-identified and/or aggregated Submitted Material, Personal Information and End User data; and
(iii) perform fraud screening, verify identities and verify Submitted Material, Personal Information and End User data for use across their network;
and agree to the Integrations performing all of the above functions.
(d) While we offer the Integrations and may have agreements with the third parties to whom they relate, we only have control over the Integrations to the extent permitted by our Platform.
15.1 Exclusion of express warranties
Subject to our obligations in respect of the provision of the Platform and Services under these Platform Terms, we make no warranties or guarantees:
(a) the Platform and/or Services will be accessible at all times, uninterrupted or error free;
(b) any of the Platform is without bugs or viruses;
(c) any of the technical information is without error or inaccuracy;
(d) the Platform is immune to unauthorised access or security breach; and
(e) in respect of the retention of, or continued accessibility of, any data.
15.2 Warranties as to capacity
Each party represents and warrants to the other that:
(a) it has full power and authority to execute these Platform Terms and observe and perform all of its obligations;
(b) it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under these Platform Terms; and
(c) it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.
16. Limitation of liability
16.1 Consumer Law
(a) You acknowledge and agree that we are not responsible for the conduct or activities of any other user of the Services .
(b) If you are a consumer within the meaning of the Consumer Law, there are certain rights, such as the consumer guarantees, implied by the Consumer Law which cannot by law be excluded (Non-Excludable Conditions). This clause is subject to those Non-Excludable Conditions.
(c) Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, we:
(i) exclude from these Platform Terms all guarantees, conditions and warranties that might but for this clause be implied into these Platform Terms;
(ii) excludes all liability to you for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by you in connection with these Platform Terms, including using the Services, whether that liability arises in contract, tort or under statute; and
(iii) will not, under any circumstances, be liable to you for any Consequential Loss.
(d) If our liability under these Platform Terms cannot be lawfully excluded, to the maximum extent permitted by law, our liability for breach of any Non-Excludable Condition is limited:
(i) in the case of goods, to (at our option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;
(ii) in the case of services, to (at our option) the supplying of the services again; or the payment of the cost of having the services supplied again.
Subject to clause 16.1, we exclude, and you agree to indemnify and hold us harmless from, all other liability to you for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by you in connection with the Platform Terms, the Platform and/or the Services, including (but not limited to):
(a) the occurrence of an Unforeseen Event;
(b) reliance on technical advice, modelling or calculations provided by us;
(c) relying on any information or guidance provided through a Course or Courseware;
(d) the infringement or claimed infringement by any person other than us or our Representatives of the Intellectual Property Rights or moral rights of any person in connection with the Platform Terms;
(e) the infringement, negligence, improper action, breach of privacy or any other action committed by a third party who you choose to share your information with through the Platform;
(f) any loss or damage to property, personal injury or death arising directly or indirectly in connection with the Platform Terms;
(g) any unauthorised activity in relation to the Platform or Services by any user or third party;
(h) your use of or reliance on the Platform and/or Services for a purpose other than the business purposes of you or the reasonably expected purpose of the Platform and/or Services; or
(i) your failure to fulfil your obligations under the Platform Terms.
The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by our negligence) or under statute.
16.3 Third Party Integrations
(a) We make no guarantee as to the safety, security, merchantability, fitness, reliability or usability of any third party Integrations on the Services.
(b) Where you suffer any damages, loss or injury due to the acts or omissions of an Integration, your sole and exclusive remedy is to pursue the owner of that Integration for those damages. You release and discharge us for all liability relating to any Integration, except to the extent where we have contributed to any damage, loss or injury.
16.4 Limitations Generally
(a) Despite any other provision to the contrary, our total liability in connection with these Platform Terms whether under contract or tort, will not in any circumstances exceed $100.00 (AUD).
(b) You indemnify us for any reasonable legal expenses we incur as a result of your breach of these Platform Terms, including expenses for enforcing payment, on a solicitor and own-client basis.
You agree to release, indemnify, defend, and hold harmless us claim or liability arising whether directly or indirectly arising in connection with the Service, even if we knew or should have known about the possibility of such claim or liability. This includes (but isn’t limited to) claims for:
(a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(b) any breach of clause 6 (Submitted Material), clause 8 (Your Obligations), clause 9 (Privacy), 10 (IP), 12 (Data) and 13(Security);
(c) infringement of Intellectual Property Rights;
(d) our compliance with any Technical Assistance Notice, Technical Assistance Request or Technical Capability Notice issued under the Telecommunications Act 1997 (Cth) or Computer Access Warrant under the Surveillance Devices Act 2004 (Cth) or any other applicable or comparable instrument from time to time;
(e) invasion of the right of Privacy; and
(f) any incorrect, fraudulent or false information provided by you; and
(g) any downtime, interruption, failure or misuse, data loss, third party materials, loss or damage, denial of access, acts of third parties or Consequential Loss of any kind.
The obligations in this clause 17 survive termination of these Platform Terms.
18.1 Termination by Notice
Either party may terminate these Platform Terms by providing the other party 24 hours notice.
18.2 Termination by Account Management
You may terminate these Platform Terms by sending your cancellation request to us by email.
18.3 Immediate Termination by us for Default
We may terminate these Platform Terms immediately by notice to you if:
(a) an Insolvency Event occurs in relation to you; or
(b) you commit any breach of any of your obligations under these Platform Terms.
19. Effects of Termination
19.1 When Termination Occurs with Notice
If these Platform Terms is terminated in accordance with clause 18.1, these Platform Terms will terminate at the expiry of the notice period.
19.2 When Termination Occurs without Notice
If these Platform Terms is terminated in accordance with clause 18.2 or 18.3, these Platform Terms will terminate immediately.
19.3 Effects of Termination
(a) On termination of these Platform Terms, any licences will terminate and you must immediately;
(i) cease all activities related to the Services; and
(ii) do any further things as may be reasonably required us to protect our right, title and interest in the Services.
(b) You will no longer be permitted to access the Platform and any Courses or Courseware upon termination of these Platform Terms. You acknowledge and agree that you will be entitled to no refunds in relation to any purchases or subscriptions you have paid for on the Platform, including Courses and Courseware.
20. Dispute Resolution
(a) Any dispute between you and a third party must be resolved on the basis of any agreements between those parties, or failing that, in good faith. We take no responsibility for, and will not take part in, any dispute involving End Users and third party except where that dispute relates directly to an issue with the Platform or us.
(b) In the event of any issue which relates directly to us or the Platform, your sole and exclusive remedy is the following procedure:
(i) within seven (7) days of the issue, you must send a message to the support address listed in Schedule 1 or, where the functionality exists, open a support ticket within the Platform;
(ii) you must detail your issue in writing in as much detail as possible;
(iii) we will then review your issue and seek your further input if needed; and
(iv) we will make a decision in relation to the dispute at our discretion and provide you that decision in writing.
(c) You agree that any decision we make is final and you will be bound by it. You indemnify us fully for any and all expenses we incur as a result of you failing to abide by our decision and continuing the dispute (including any subsequent legal proceedings).
(d) You agree that, where you breach the above clause 20(c) and continue the dispute after a decision has been made, you will first contact us and seek in good faith to arrange a mediation for the relevant issue.
21.1 Confidentiality Generally
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
(c) Notwithstanding any other provision of this clause, a party may disclose the terms of the Platform Terms (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(d) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Platform Terms, do not make public or disclose the other party’s Confidential Information.
21.2 Breach notifications
A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened:
(a) breach by any person of any obligation in relation to the Confidential Information; or
(b) theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
The obligations under this clause 21 survive termination of the Platform Terms.
(a) Any communication under or in connection with these Platform Terms:
(i) must be to the addressee as set out in Schedule 1 from time to time or where the functionality exists, sent via a message or support ticket within the Services and/or Platform; and
(ii) must be in writing.
(b) Either party may serve any communication on the other party by sending it to that party’s email address or through the support ticket process. A communication by email will be taken to have been received by the addressee at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee.
(c) If delivery is made after 5:00pm on a Business Day, it must be treated as received on the next Business Day.
(d) For the purposes of the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions (Queensland) Act 2001 (Qld), the parties agree to send, receive and execute notices and documents electronically, and agree that any document signed electronically will be binding with the same effect as a physical signature.
(e) In relation to any unforeseen event or downtime notices, it is sufficient for the purposes of these Platform Terms that we provide information about such occurrences on our Website.
22.2 Unforeseen Event
A party is not responsible for any loss arising out of any occurrences or condition beyond its control, including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.
(a) You may only assign, encumber, declare a trust over or otherwise create an interest in your rights under this document with our consent.
(b) We may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
We may amend these Platform Terms from time to time at our complete discretion. We will provide notice on our website, the Platform and/or via email of any changes we deem as ‘major’ to our Platform Terms.
22.5 Liability for expenses
Each party must pay its own expenses incurred in negotiating, executing and registering this document.
22.6 Giving effect to this document
Each party must do anything (including execute any document) and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.
22.7 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
Nothing in these Platform Terms is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. Unless expressly stated in these Platform Terms, no party may act as agent of or in any way bind another party to any obligation.
22.9 Warranties as to capacity
Each party represents and warrants to the other that:
(a) it has full power and authority to execute these Platform Terms and observe and perform all of its obligations herein;
(b) it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under these Platform Terms; and
(c) it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.
22.10 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
22.11 Inconsistency with other documents
If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
Neither party has entered into any contract under these Platform Terms in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in these Platform Terms.
Where these Platform Terms states that our consent or approval is required, we may:
(a) give or withhold that consent or approval in our absolute discretion; and
(b) give that consent or approval subject to conditions, unless these Platform Terms expressly states otherwise.
22.14 Liability of Parties
If a party consists of more than one person:
(a) an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them;
(b) a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and
(c) a representation, warranty or undertaking made by that party is made by each of those persons.
The obligations set out under clauses 6, 8, 9, 10, 12, 12.6(e) and 21 survive termination of these Platform Terms.
These Platform Terms may be accepted by you checking an acceptance box, signing in to the Platform, viewing the Courseware or making any other affirmative action such that we may reasonably conclude that you have understood and accepted these Platform Terms. Upon your acceptance, we warrant to agree to the terms of these Platform Terms and you may consider your acceptance execution by us for same. Your use of the Platform also constitutes your acceptance, and continued acceptance, of the Platform Terms as updated from time to time.
22.17 Governing law
The laws of Queensland, Australia govern these Platform Terms. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
Schedule 1 Notices
The addresses and numbers for service are initially:
Blue Flame Social Media
Email: teachme @ blueflamesm.com.au
Attention: Blue Flame Social Media Support
Email: As provided by User to Blue Flame Social Media
Attention: As provided by User to Blue Flame Social Media