ACHIEVE ANAESTHESIA TERMS OF SERVICE
THIS IS A BINDING AGREEMENT between Achieve Anaesthesia Pty Ltd (us or we) and any person (you) who registers a User Account on the Site.
In consideration of your access to and/or use of your User Account on the Site and the Services, you agree to abide, and be bound, by the terms and conditions set out in these Terms of Service.
DEFINITIONS
In these Terms of Service, all other grammatical forms of defined terms have a corresponding meaning and:
ANZCA means the Australian and New Zealand College of Anaesthetists.
Content means any data, text, files, information, user names, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or material posted to the Site, including but not limited to the Study Materials.
Intellectual Property Rights means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential (together with any application or right to apply for registration of any such rights).
ISP means internet service provider.
ISP Services means internet service and/or access provider services.
Personal Information has the meaning given in section 6 of the Privacy Act.
Personnel means, in respect of a person, their employees, agents and subcontractors.
Privacy Act has the meaning given in clause 12.2.
Services means the tutoring services we provide via the Site intended for use by candidates undertaking training as a specialist anaesthetist in Australia, as more fully described in clause 3.
Site means the website located at www.achieveanaesthesia.com that incorporates Zoom video conferencing or equivalent functionality.
Study Materials means all study and tutoring materials, guides, factsheets and other documents created, developed or belonging to the Company (including in electronic form).
Tutor has the meaning given in clause 3.1.
Tutoring Agency means the organisation that employs the Tutor.
User means any person who accesses or uses the Site.
User Account means an account registered by a User on the Site under clause 2.
Your Tutor means the Tutor or Tutors who is allocated by us to conduct tutoring sessions with you.
REGISTRATION OF USER ACCOUNT
2.1 Registration. You must register a User Account in order to use the Site and receive the Services.
2.2 Accuracy. When registering as a User of the Site, you must provide us with accurate, complete and up-to-date information as requested on the registration page of the Site. It is your responsibility to inform us of any changes to that information. You may do this at any time by accessing your User Account page on the Site.
2.3 Obligations. We may, in our absolute discretion, refuse registration or close your User Account if:
(a) you register or attempt to register more than one User Account;
(b) you breach these Terms of Service;
(c) you open or attempt to open a User Account using incomplete or falsified details, or otherwise in a fraudulent or illegal way; or
(d) we consider refusal of registration or the closure of your User Account is necessary to comply with our obligations at law.
2.4 Responsibility and security. You acknowledge and agree that:
(a) you are solely responsible for all activities that occur on your User Account;
(b) your password is confidential;
(c) you will keep your password secure and not disclose it to any other person, nor will you permit your username and password to be given to or used by any other person;
You must change your password regularly and notify us if you have reason to believe the confidentiality of your password is compromised.
(d) You agree to receive essential service emails on registration of your account, as well as marketing emails. Marketing emails to cease only when emails are unsubscribed.
SERVICES
3.1 Purpose. The Site is designed to facilitate the provision of one-to-one tutoring of Users by appropriately qualified tutors(Tutors), for the purpose of preparation for the examinations that form part of your specialist anaesthetics training.
3.2 Functionality. The Site has the functionality described below:
(a) access to the Study Materials; and
(b) a calendar based booking system which will show available tutoring session times and enable online booking of tutoring sessions.
Packages and Fees
4.1 Amount of tutoring fee. We offer a pricing structure that packages one-on-one tutoring services and access to a range of study materials. Available packages and applicable fees are set out on our website at achieveanaesthesia.com (as updated from time to time).Payment of Fees. You must pay to us the Fees by either Paypal or Stripe, , and without any set off or deduction. We will nominate our Paypal and Stripe accounts to you in writing. When Paypal or Stripe (as applicable) confirms receipt of payment of the Fees, your User Account will be activated, you will be granted full access to the Study Materials and allocated a Tutor.
4.2 No pro-rata refund. The Fees are payable in advance, and subject to clause 2, no part of the Fee will be refunded to you should you cancel your package, or should these Terms of Service be terminated in accordance with clause 11.1. If we cancel your access to and use of the Services (including your User Account) without cause under clause 11.2, we will provide you with a pro-rata refund commensurate with the proportion of the Services that will not be provided by us.
4.3 GST. If we make a supply under or in connection with these Terms of Service on which GST is imposed:
(a) the consideration payable or to be provided for that supply under these Terms of Service but for the application of this clause (GST exclusive consideration) is increased by, and you must also pay to us an amount equal to the GST payable by you on that supply; and
(b) you must pay to us the amount by which the GST exclusive consideration is increased, without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
If a payment to a party under these Terms of Service is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. Unless the contrary intention appears, a word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
YOUR RESPONSIBILITIES
5.1 Accessing Services. To use and access the Services, you must:
(a) be a current or prospective candidate undertaking training as a specialist anaesthetist, predominately however not exclusively, via ANZCA.
(b) have access to a valid User Account on the Site;
(c) paid all Fees invoiced by us;
(d) ensure that you have equipment and services to meet the requirements for using the Zoom desktop client on Windows, macOS or Linux as set out at www.zoom.us, including suitable audio and video; and
(e) have an account for the provision of ISP Services with an ISP in Australia.
Your ISP (and not us) is responsible for the provision of ISP Services pursuant to any agreement between you and that ISP in respect of those ISP Services. You are responsible, and are solely liable, for any account charges or other costs incurred in relation to the ISP Services, including the use of the Services using the ISP Services.
5.2 Information. You agree to provide all information required to enable us to provide the Services. You must ensure that all such information is accurate and complete. We will not be liable for any loss or damage arising from any inaccuracy, omission or other defect in any such information.
5.3 Your obligations. You acknowledge and agree that:
(a) you are the person who will access the User Account to use the Site and will receive the Services;
(b) you will notify Your Tutor promptly upon becoming aware that you are unable to attend any scheduled tutoring session;
(c) you will promptly notify us via email to info@achieveanaesthesia.com (or such other address notified from time to time) of any issues with the provision of the Services by us or Your Tutor;
(d) candidates and Tutors must meet only through the Site and not through any other manner of communication or in person;
(e) you are solely responsible for all actions or omissions, whether negligent or otherwise, undertaken by you or your Child in connection with the use of the Site;
(f) you will ensure that you have access to suitable hardware (including appropriate video and audio equipment), location and ISP Services to participate in video conferences with your Tutor conducted via Zoom; and
(g) you must not use the Site or Services for any illegal, fraudulent or offensive purpose.
5.4 Compliance. You must comply with our reasonable directions in relation to your access to or use of the Services. In addition, you must use the Services in good faith, and must at all times comply with these Terms of Service and all applicable laws, statutes and regulations in all jurisdictions that relate to your access to or use of the Services (including applicable privacy laws).
TUTORING SERVICES
6.1 Tutoring Sessions: Tutoring sessions will be conducted via Zoom and will be one-on-one with a duration of 60 minutes. You may book two consecutive tutoring sessions on any day subject to Your Tutor’s availability. The content and format of tutoring sessions will be agreed between you and Your Tutor. After you have booked a tutoring session/s, we will provide you an internet link to enable access to the video conference with Your Tutor at the booked time.
6.2 Tutor Allocation: All tutors will be suitably qualified in anaesthetics to provide the Services and will be of good professional standing. As a minimum, tutors will have passed their primary examinations for fellowship to either the ANZCA or the Royal College of Anaesthetists. While we will attempt to allocate Your Tutor based on any preferences you have, We will allocate Your Tutor in our absolute discretion and may change Your Tutor at any time in our absolute discretion. We may allocate more than one tutor to provide the Services to you.
6.3 Scheduling tutoring sessions: The timing of tutoring sessions will be agreed directly between you and Your Tutor. You agree that we are not responsible for the scheduling of tutoring sessions. If you are unable to agree a suitable schedule of tutoring sessions, we will use our reasonable endeavours to allocate an alternative tutor. Your Tutor will provide reasonable notice to you if they are unavailable to attend any scheduled tutoring session. You and Your Tutor will negotiate and agree on the rescheduling of tutoring sessions, as required. We may allocate another Tutor to provide the Services where rescheduling with Your Tutor is not possible.
6.4Cancellation Policy: You will forfeit any scheduled tutoring session that you do not attend, unless you:
(a) have provided Your Tutor [and Us] at least 24 hours prior notice; and
(b) are able to reschedule that tutoring session within 24 hours of its original time.
6.5 Etiquette: You acknowledge and agree that you will conduct yourself professionally and courteously at all times during tutoring sessions and must not engage in any conduct that is:
(a) offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, harassing or ethically objectionable or inflammatory; or
(b) false, misleading, fraudulent, or infringes the Intellectual Property Rights of any third party.
CONTENT MADE AVAILABLE ON THE SITE
7.1 Our Content: Content that is made available on the Site is only available to Users. You must comply with all restrictions on use set out in these Terms of Service.
7.2 Content made available on the Site: You acknowledge that while we use our reasonable endeavours to ensure the accuracy, currency and completeness of Content, we will not be responsible to the extent that the Content is inaccurate or out-of-date.
7.3 Removal of Content. We may, in our absolute discretion remove or edit Content at any time.
RESTRICTIONS ON USE
8.1 Restrictions. You must not:
(a) use the Site or the Services for any purpose other than as permitted by these Terms of Service;
(b) copy, create any derivate works of, disseminate or share (including screen share) any Content;
(c) remove or tamper with any copyright notices on the Site;
(d) disassemble, decompile, reverse engineer, or create derivative works or functionally equivalent software from the Site (except to the extent permitted by Division 4A of Part III of the Copyright Act 1968 (Cth));
(e) disassemble, decompile, reverse engineer, or create derivative works from the Services;
(f) copy or download, in a systematic manner, any content, graphics, video, text or animation from the Site or the Services, or communicate or otherwise distribute such systematically obtained content, graphics, video, text or animation; or
(g) incorporate the Content or Services in any product to be made available commercially (unless we expressly agree otherwise with you).
8.2 Disruption. You must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, trojan or other malicious code into the Site or the Services, or in any other manner whatsoever corrupt, degrade or disrupt the Site or the Services.
8.3 Unlawful, unauthorised or dangerous use. You must not (nor permit a third party to) submit any data or information to the Site or the Services, nor otherwise use the Site or the Services:
(a) to engage in any activity which breaches any law, infringes a third party’s rights, or in a manner which interferes with the rights of any other person;
(b) to infringe our Intellectual Property Rights (including trade marks and copyright) or the Intellectual Property Rights of any third party;
(c) in any way that is defamatory, obscene, misleading or deceptive or otherwise illegal; or
(d) in any way that constitutes misuse, or resale or other commercial use, of the Services or any associated materials.
TITLE AND INTEREST
9.1 Site and Services. You agree that all rights, title and interest (including all Intellectual Property Rights) in and to the Site and the Services vest absolutely in us (and/or our third party licensors). The only rights you have in respect of the Services are those granted to you under these Terms of Service.
LIABILITY
10.1 Disclaimer. We have prepared the Content and will allocate Your Tutor with reasonable care and diligence. However we cannot provide any promise or guarantee about Your academic results. By entering into these Terms of Service, you acknowledge and agree that nothing in these Terms of Use or any Content constitutes a promise or guarantee in connection with or in any way relating to the Site or the Services, including (without limitation) the academic results that You may or will achieve in any examinations or other assessments that You participate in as part of an anaesthesia training program or any other medical, clinical or other training or education program whether in Australia or otherwise. We will not be liable for, and you release us and our Personnel from any losses, damages, costs and expenses incurred or suffered by the you as a result of any act or omission of Your Tutor, other than as provided for in these Terms of Service, to the extent permitted by law.
10.2 Consumer guarantees. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under these Terms of Service. However, if a supply under these Terms of Service is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in these Terms of Service excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law; provided that, to the extent the Australian Consumer Law permits us to limit our liability, then our liability is limited to (at our option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
10.3 Exclusion of Liability. Subject to clause 2, we exclude liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise suffered or incurred by any person in any way relating to the Site or the Services, including (without limitation):
(a) in connection with any disruption to or unavailability or failure of the Site or Services or interference with or damage to computer systems or other electronic devices;
(b) the availability, continuity, reliability, accuracy, currency or security of the Services or any third party services used by to access any part of the Services;
(c) in connection with errors, omissions or inaccuracies contained in any information published on the Site or supplied by us to you via email or otherwise;
(d) as a result of any fraudulent use, misuse or misappropriation of your User Account; or
(e) as a result of any act committed by another person in connection with your (or another User’s) use of the Site or the Services.
TERMINATION
11.1 Termination for breach. Where you have breached any provision of these Terms of Service, without prejudice to any other rights or remedies, we may by written notice immediately terminate these Terms of Service or the provision of any Services, without any liability to you. This will include termination of your User Account and the forfeiture of any unused tutoring sessions.
11.2 Termination without cause. We may terminate your access to and use of the Services (including your User Account) without cause by giving you 14 days’ prior written notice. If we terminate under this clause, we will refund the portion of Fees relating to unused tutoring sessions. You may deactivate your User Account at any time by giving notice to us via email or through the Site. You will not be entitled to any refund of Fees if you deactivate your User Account.
11.3 Consequence of termination. You acknowledge and agree that, on termination of these Terms of Service for any reason, or should you close your User Account, you will cease to have access to the Services, and where applicable, make payment to us for all outstanding fees owed under these Terms of Service.
11.4 Survival. Clauses 10, 11, 12 and 13 survive termination of these Terms of Service.
CONFIDENTIALITY AND PRIVACY
12.1 Confidential information. Neither party may disclose to any third party, without the prior written consent of the other party, any confidential information received from the other party for the purposes of providing or receiving the Services. Our confidential information includes our methodologies and tools. This restriction does not apply to information which is or becomes generally available to the public (other than as a result of a breach of an obligation under this clause), is independently developed by the recipient, or is required by law to be disclosed.
12.2 Privacy. We will collect Personal Information directly from you, in person or via the Site, and through Tutors to enable us to provide the Services to you. We will use, disclose and store your Personal Information for the purpose of providing the Services to you and administering your use of the Site. We may disclose your personal information to our service providers, including Tutors and our technology service providers (such as Zoom) who may be located outside of Australia.
GENERAL
13.1 Assignment. You may not assign your rights under these Terms of Service, or attempt or purport to do so, without our prior written consent (which may be given or withheld in our absolute discretion).
13.2 Force majeure. Neither party will be liable to the other for any failure to fulfil, or delay in fulfilling, its obligations caused by circumstances outside of its reasonable control (including illness of our consultants). However, this clause does not apply to any of your obligations to pay money for Services performed.
13.3 Governing law. These Terms of Service are governed by and interpreted in accordance with the laws of South Australia, and all parties submit to the jurisdiction of the courts of South Australia.
13.4 Severability. If any provision, or part of a provision, of these Terms of Service is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of these Terms of Service will be construed as if that provision or part did not form part of these Terms of Service. The previous sentence will not apply if the provision or part to be severed constitutes a material and fundamental element of the agreement between the parties.
13.5 Variation. We reserve the right to revise and amend the Terms of Service in our discretion, as follows:
(a) if we consider that the change is likely to benefit you or have a neutral or minor detrimental impact on you, then we may make any changes immediately without notifying you except by publishing the amended Terms of Service (as applicable) on the Site;
(b) if we consider that the change is likely to have a significant detrimental impact on you, then we will make the change after we have notified you of the change (solely by using the email address you have provided) and will display a notice on the Site describing the change.
Your continued use of the Site and/or the Services after an amendment will mean that you agree to that amendment. You must stop using the Site and the Services if you do not agree to an amendment.
13.6 Entire agreement. These Terms of Service are the entire agreement between the parties on its subject matter and supersede any previous arrangements, agreements, representations, understandings or statements (whether verbally, in writing or in another format).