BEAR Learn PTY LTD

ACN 630 576 082

 

Terms And Conditions Of Use

These Terms govern all access to and use of Our Sites and the Services and form a binding contractual agreement between You and Us.

 

For that reason, these Terms are important and You should ensure that You read them carefully and contact us with any questions before You use the Sites and/or the Services.

 

By using the Sites and/or the Services, You acknowledge and agree that You have had sufficient chance to read and understand the Terms and You agree to be bound by them. If You do not agree to the Terms, please do not use the Sites.

 

1. Definitions

 

Bear Bank Site means <https://bank.bearlearn.com/>;

 

Bear Learn Site means <https://bearlearn.com/>;

 

Confidential Information means all information exchanged between the parties and information that is confidential by its nature but does not include:

(a)         information already known to the receiving party at the time of disclosure by the other party;

(b)         information received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or

(c)         information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under these Terms;

 

Data means any data uploaded or inputted by You or with Your authority into a Site in exchange for using a Service (whether that information and Data is Your own or that of anyone else);

 

Deliverables means all products and Materials created or provided by Us for delivery to You in connection with a Service including but not limited to “Bear Quotes”, “Bear Arguments”, and other services provided by Us from time to time, but specifically excludes Our proprietary software, or documentation and any third-party software or related documentation licensed directly to You from a third party, or any modifications, enhancements or derivatives of that software or documentation;

 

Intellectual Property Rights means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world regardless whether it is registered;

 

Material means goods, documents, reports, data, information, know-how, computer files, designs, graphics, logos, artwork, templates, methodology or other material of any sort and in any form;

 

Personal Information is as described in Clause 1 of the Privacy Policy;

 

Privacy Policy means Our Privacy Policy which may be accessed at <https://bearlearn.com/privacy-policy/>;

 

Service means:

(a)         the Subscription Service available at the Bear Learn Site;

(b)         the Software available at the Bear Bank Site; and/or

(c)         the provision of the Deliverables,

made available by Us through a Site (which may be changed or updated from time to time) but only to the extent to which You have subscribed for or purchased through the relevant Site;

 

Service Fee means the fee (if any) for the licence of each Service item selected by You the amount and frequency of which being set out in a Site from time to time;

 

Site means each of the Bear Bank Site, the Bear Learn Site, and any other internet site operated by Us;

 

Software means (as the context requires):

(a)         the information platform and associated applications accessible through the Bear Learn Site; and/or

(b)         the online organisational system designed for note taking and associated applications accessible through the Bear Bank Site.

 

Subscription Service means an email subscription service to which a User can subscribe for Us to send certain Deliverables to the email nominated by the User in the manner specified by the Bear Learn Site;

 

Terms means these terms and conditions;

 

Use Period means the period during which you may access and use a Service and the relevant Site in accordance with these Terms being the period to which the Service Fee relates as selected by You through the Site;

 

User means the person who registers or subscribes to use a Service and, where the context permits, includes any entity on whose behalf that person registered to use the Service;

 

User Material means any Material provided to Us by You (or at Your direction) in connection with a Service including but not limited to the Data;

 

We, Us, Our means Bear Learn Pty Ltd ACN 630 576 082; and

 

You, Yourself, Your means the User.

 

 

1. Use of our Services

 

2.1        License to Use

We grant You a limited, non-transferable, non-sublicensable, non-exclusive licence to access and use the selected Service(s) and the relevant Site(s) during the applicable Use Period for Your own lawful purposes only in accordance with the terms and conditions set out in these Terms.

 

2.2        Changes to these Terms

The Services will evolve over time based on user feedback or at our discretion to improve the user experience of the Sites. We reserve the right to change these Terms at any time. We will communicate these changes to You via email or notification via the Sites. Changes to these Terms are effective upon Your continued use any of the Services subsequent to Us notifying You of the changes. If You do not agree to the changes, we are unable to provide You with access to the relevant Services and may terminate these terms in accordance with Clause 8.

 

1. Your obligations

 

3.1        Payment obligations

(a)         In consideration for the licence to use a Service granted by these Terms, You must pay the Service Fee to Us.

(b)         You must pay the Service Fee to Us through the online payment facility as directed by the relevant Site from time to time.

(c)         If You have the benefit of any introductory Service Fee, that Service Fee applies only in respect of the first Use Period. The Service Fee will return to the regular Service Fee as indicated on the relevant Site for each subsequent Use Period (including when the Use Period is renewed in accordance with Clause 8.3(b)).

 

3.2        Trial periods

We may make available a free trial for non-paying users for a limited time period to be specified by Us. The terms of the free trial will be specified by Us by changes to these Terms in accordance with Clause 2.2 which may without limitation, include terms relating to:

(a)         the provisions of these Terms that apply to the free trial;

(b)         Our ability to terminate the use of a Service at any time and for any reason;

(c)         Your acknowledgement that Your Data will have no commercial value and that We may delete your Data upon expiry of the trial period; and

(d)         restrictions as to your ability to access technical support.

 

3.3        General User obligations

Each User must only create one user account with a password and accurately provide all required and accurate information in order to access or use a Service. You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security so that We may reset Your password.

 

3.4        User obligations in respect of content

When accessing and using a Service, You must only use the Service and the relevant Site for Your own lawful purpose. You must not upload or input any content to the relevant Site or Service:

(a)         unless You hold all necessary rights, licences and consents to do so;

(b)         that would cause You or Us to breach any law, regulation, rule, policy or other legal obligation;

(c)         that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;

(d)         that would bring Us, the Site or the Service into disrepute; or

(e)         that violates Our rights or the rights of any person.

We will not be liable in any way for any content, including but not limited to any error or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted through the Site or the Service.

 

3.5        Access conditions

When accessing and using a Service and the relevant Site, You must:

(a)         not attempt to undermine the security or integrity of Our computing systems or networks, or, where the Service is hosted by a third party, the computing systems and networks of any other third party;

(b)         not use, or misuse, the Service in any way which may impair the functionality of the Service or Site, or other systems used to deliver the Service or impair the ability of any other User to use the Service or Site;

(c)         use the Service or Site in any manner which is unlawful, offensive, threatening, defamatory, obscene, indecent, incorrect, fraudulent, misleading, deceptive or otherwise inappropriate;

(d)         not attempt to gain unauthorised access to any Materials other than those to which You have been given express permission to access;

(e)         not transmit, or input into the Site or Service, any content that may damage any other person’s computing devices, software or content;

(f)          not disclose, transfer, duplicate, reproduce, retain for a purpose other than that for which it was first acquired, sell or reuse any information in the Site or the Service, regardless of the form in which that information was supplied; and

(g)         not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service (including the Software) or to operate the Site except as is strictly necessary to use either of them for the purposes which the Site and Service was designed to be used.

 

3.6        Communication conditions

If You use any communication tools available through a Site or a Service (such as data uploads, notes exchange, email, chat, file notes, text messages, forums), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, including (but not limited to):

(a)         offers of goods or services for sale;

(b)         unsolicited commercial e-mail,

(c)         files that may damage any other person’s computing devices or software; and

(d)         content that may be offensive, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).

When You make any communication on the Site or Service, You represent that You are permitted to make such communication. We are under no obligation to ensure that the communications on the Site or the Service are legitimate or that they are related only to the use of the Service. As with any other web-based service, You must exercise caution when using the communication tools available on the Site or the Service. However, We reserve the right to remove any communication at any time in Our sole discretion.

 

1. Intellectual Property

 

4.1        General

Nothing in these Terms constitutes a transfer of any Intellectual Property Rights.

 

4.2        Ownership of Data

(a)         We acknowledge all right, title and interest in the Data and in the Intellectual Property Rights in the Data is and remains Your property and We obtain no interest in the Data or the Intellectual Property Rights of Your Data other than those interests or rights set out in these Terms (including the licence You grant to Us in accordance with Clause 4.3).

(b)         However, Your access to the Data is contingent on You not being in breach of your obligations under these Terms.

 

4.3        Licence for the Data and User Material

To the greatest extent permitted by, but not in contravention of, applicable law, You grant to Us a royalty-free, non-exclusive and perpetual licence to collect, use, reproduce, sub-licence, backup, modify and adapt your Data and User Material for the purposes of:

(a)         enabling You to access and use the Sites and Services;

(b)         fulfilling the Services; or

(c)         provision and improvement of the Services.

 

4.4        Ownership of Site and Software

You acknowledge and agree that Intellectual Property Rights in all the Software, the Services and the Sites belong exclusively to Us and You will not dispute such ownership. If We provide new features or services based on requests or suggestions made by You, You acknowledge that any such new features or services belong exclusively to Us and that You will not be compensated for the request or suggestion.

 

4.5        Ownership of Deliverables

(a)         You acknowledge that We own the Deliverables and all the Intellectual Property Rights in the Deliverables.

(b)         We grant to You, a non-exclusive, perpetual, non-transferable licence to use the Deliverables and all Intellectual Property Rights in them, for Your personal purposes only and subject to any limitations stipulated by Us. This licence is contingent on You being in compliance with Your obligations under these Terms.

(c)         To the extent that We use, in connection with the performance of a Service, any intellectual or other property that We own or licence, We retain all right, title and interest in and to such property.

 

4.6        Backup of Data

We will use best endeavours to back-up Data on a daily basis to prevent data loss, but We do not guarantee there will be no loss of Data and expressly exclude liability for any loss of Data no matter how caused.

 

4.7        Third party applications and Your Data

From time to time we may integrate a Site or a Service with third party applications. If You enable any such third-party applications for use in conjunction with the Service and the Site (where applicable), You acknowledge and consent to Us allowing the providers of those third-party applications to access Your Data and/or Personal Information as required for the inter-operation of such third-party applications with the Service. We are not responsible for any disclosure, modification, corruption or deletion of Your Data resulting from any such access by third-party application providers.

 

4.8        Deletion and access to Data on termination

(a)         In the event of a termination in accordance with Clause 8, the Data that You have uploaded into a Site or a Service and content collected throughout the use of the Service may be deleted at Our own discretion after 1 calendar month following the date of termination and You consent and authorise Us to delete the Data in such manner.

(b)         So long as You are not in breach of these Terms, You may, in writing, up to the date the Data is deleted by Us in accordance with this Clause 4.8, request a backup of Your Data. Backups will be provided in a common export format determined by Us. We reserve the right to charge our reasonable costs and fees in providing you with the backup depending on the frequency, size and delivery requirements of the backups.

 

1. Confidentiality and Privacy

 

5.1        Confidentiality

(a)         Unless the relevant party has the prior written consent of the other, or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.

(b)         Each party’s obligations under this clause will survive termination of these Terms.

 

5.2        Privacy

We maintain a Privacy Policy that sets out the parties’ obligations in respect of Personal Information. You should read that policy which can be found here <https://bearlearn.com/privacy-policy/> and will be taken to have accepted that policy upon these Terms being binding on You.

 

1. Warranties and acknowledgments

 

6.1        General Disclaimer

(a)         We make no warranty that a Service will be uninterrupted, timely, secure, accurate or error free. Use of any Deliverables downloaded or obtained through the use of the Service shall be at Your own discretion and risk.

(b)         You will be solely responsible for any damage to Your computer system, mobile telephone, wireless device or Data that results from the Use of the Service or the download of any of the Deliverables. Under no circumstances will any advice or information, whether written or oral, obtained by You from Us create any warranty or representation not expressly stated in these Terms.

(c)         We do not guarantee that the Service will meet Your requirements or that it will be suitable for any particular purpose. For the avoidance of doubt, all implied conditions or warranties are excluded insofar as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

 

6.2        Acknowledgments 

You represent, warrant and acknowledge that:

(a)         neither the entering into of these Terms nor the performance by You of Your obligations will cause You to be in breach of any agreement to which You are a party or is subject;

(b)         You have full right and title to the Intellectual Property Rights of the Data and have not infringed any rights or duties of confidentiality and privacy by dealing with the Data;

(c)         You are authorised to use a Service and to access the Deliverables and Data that is made available to you through Your use of the relevant Site and the Service (whether that information and Data is your own or that of anyone else);

(d)         You have obtained all relevant authorisations, agreements, consents or approvals from any third party required to use a Service, submit the Data and/or User Material to Us and to access the Deliverables, Data and User Material that is made available to You through Your use of the Service and that Our use of the Data or User Materials including incorporation of such information into the Service or Deliverables, will not infringe:

(i)          the rights of any person, including the privacy rights or the Intellectual Property Rights of any person; and

(ii)         any other laws, including, without limitation, a breach of the Australian Consumer Law;

(e)         all Personal Information provided by You to Us under, or in connection with a Service has been collected strictly in accordance with the Privacy Act 1988 (Cth), and We are authorised to collect the Personal Information from You and to use the Personal Information for the purposes of this agreement and fulfilling a Service generally;

(f)          the provision of, access to, and use of, a Service is on an “as is” basis and at Your own risk;

(g)         You remain solely responsible for complying with all applicable laws. It is Your responsibility to check that storage of and access to the Data via a Service and the relevant Site will comply with laws applicable to You (including any laws requiring You to retain records);

(h)         any configurations of a Service (such as Deliverables, document templates, system settings and knowledge base contents etc.) supplied by Us are for Your convenience and use only, and it is solely up to You to determine if they are suitable for the purposes for which they are used;

(i)          the Data may be stored in data centres operated by a third party in Australia;

(j)          We retain complete editorial control over the Sites and the Services and may alter, amend or cease the operation of a Site or a Service at any time in Our sole discretion; and

(k)         the Services and the Sites may not operate on a continuous basis and may be unavailable or interrupted from time to time (including for maintenance purposes) as further contemplated by Clause 9.2.

 

1. Indemnity and limitation of liability

 

7.1        Exclusion of Liability

(a)         To the maximum extent permitted by law (including the Australian Consumer Law), We exclude all liability and responsibility to You (or any other person) whether in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data or profits) or damage resulting, directly or indirectly, from any use of, or reliance on, any of the Services or the Sites.

(b)         You acknowledge and understand that a Service may include advice and recommendations, but subject to the provisions contained in these Terms, all decisions in connection with the implementation of such advice and recommendations will be the responsibility of, and made by, You.

 

7.2        Indemnity

You indemnify and hold harmless Us and our respective officers, directors, employees and agents from and against all loss or damage that they may sustain or incur and all claims, allegations, actions, proceedings or demands whatsoever which may be made or brought against them by any person in connection with or arising out of:

(a)         any negligence or other wrongful act or omission by You or of any persons for whose acts or omissions You are vicariously liable;

(b)         any breach of these Terms by You;

(c)         any breach of a warranty given by You; and

(d)         any loss or damage sustained or incurred by a third party in connection with the matters contemplated by these Terms.

 

1. Termination

 

8.1        Breach

If You:

(a)         breach any of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

(b)         breach any of these Terms and the breach is not capable of being remedied; or

(c)         You become bankrupt or insolvent or become subject to any similar bankruptcy or insolvency event in any jurisdiction,

then We may take any or all of the following actions, at Our sole discretion:

(d)         terminate these Terms and Your use of a Service and the relevant Site;

(e)         suspend, terminate, restrict or lock for any definite or indefinite period of time, Your use of and access to the Service, the Site and/or any Data; or

(f)          take either of the actions above in respect of any or all other persons whom You have authorised to have access to Your information or Data.

 

8.2        Termination for convenience

We may terminate these Terms without liability to You and for any reason upon notice to You, upon which We may take any of the actions referred to in Clauses 8.1(d) to 8.1(f) (inclusive).

 

8.3        No-fault termination and automatic renewal

(a)         You may terminate these Terms for any reason upon providing written notice to Us by emailing hello@bearlearn.com upon which We may take any of the actions referred to in Clauses 8.1(d) to 8.1(f).

(b)         Subject to Clause 8.3(a), upon the end of a Use Period, these Terms will renew automatically for a further Use Period (where applicable).

 

8.4        Accrued rights

The termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.

 

8.5        No refund

(a)         If You are not satisfied with a Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.3.

(b)         You acknowledge that no refund or pro rata payment return will be payable to You upon the termination of the Terms unless otherwise permitted by Us at Our discretion.

 

8.6        Your obligations upon termination

Upon termination of these Terms, You must immediately:

(a)         stop using and prevent the further usage of the Selected Service(s) and the relevant Site(s);

(b)         fulfil all other obligations owed to Us under the Terms; and

(c)         discharge any liability incurred by You under these Terms prior to termination.

 

1. Technical support and hosting

 

9.1        Help desk

We will use our best endeavours to respond to any support requests in relation to the Sites and the Services in a timely manner. You may contact us to obtain support by emailing hello@bearlearn.com. At this time, we provide email support only.

 

9.2        Service availability

We do not warrant that any of the Sites and the Services will be available to you continuously or when required and do not warrant any service level standard. You acknowledge and agree that your access to a Site, a Service and the Data may be limited by us at Our discretion acting reasonably, including for:

(a)         routine system maintenance downtime;

(b)         downtime to address specific critical Software, Site or Service issues; and

(c)         downtime caused by circumstances beyond Our immediate control.

 

1. Software and Site updates

 

10.1      Our Software or Services may be updated from time to time. Any material updates will be communicated to You via email or notification via the relevant Sites.

10.2      By using a Service, You consent to the updated Software or Services, and any updated Software or Service will also be subject to the same terms as set out in these Terms or as expressly mentioned in the notice We provide to you pursuant to Clause 10.1 and Clause 2.2.

 

1. General

 

11.1      Entire Agreement          

These Terms constitute the entire agreement between You and Us regarding the use of Our Sites and Services.

 

11.2      Severance

If any of these Terms is held to be invalid, unenforceable or illegal for any reason, it is to be read down to give it as much effect as possible, or if it is not capable of having any effect at all, it is to be severed from these Terms, in which case, the remainder of these Terms nevertheless continue in full force.

 

11.3      Waiver

If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

 

11.4      Delays

Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control.

 

11.5      No assignment

You must not assign, transfer, sublicense or otherwise deal in any other way with any of Your rights under these Terms without Our prior consent.

 

11.6      Our right to assign

We may assign, novate, transfer, sublicense or otherwise deal with any of Our rights or obligations to a third party and You consent to any such action occurring.

 

11.7      Governing law and jurisdiction

You agree that these Terms are construed in accordance with the laws in force in the State of Victoria.

You irrevocably submit and accept the exclusive jurisdiction of any of the Courts of the State of Victoria or the Commonwealth of Australia and any courts of appeal from these courts.