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First Published: 11 February 2016

Last Updated: 16 October 2017

Welcome to Opentute

Thanks for using our Service. The Service is provided by Open Tute Pty Ltd ACN 134 845 748 (“Open Tute”, “OpenTute” or “Opentute”), a company incorporated in Australia under the Corporations Act 2001 (Cth).

By using our Service, you are agreeing to these terms. Please read them carefully.

1. Definitions:

In this Agreement

“Account” means the account you open when you register on the Service.

“Channel” means an invite-only branded area of the Private Portal, where users pay regular membership fees for moderation and regular updates by the Channel Guru (account holder). A Channel contains a dashboard feed with news only from members and is tailored to the environment and requirements of the members.

“Channel Admin” or “Channel Administrator” means a user who has been upgraded to Administrator level for management of one or more Channels within a given Private Portal.

“Channel Account Admin” or “Channel Guru” or “Channel Account Administrator” means the account holder of a Channel, who is responsible for payment and/or accepting commissions and membership payments within a given Channel on a given Private Portal.

“Course Reseller Board” means the area where Experts may resell courses at a given rate for purchase or bidding by Learners.

“Expert” means a User that offers and provides services or identifies as an Expert through the Service.

“Expert Services” means all services provided by Experts.

“Inactive Account” means a User Account that has not been logged into for a continuous 12 month period.

“Intellectual Property Rights” means any and all intellectual property rights, existing worldwide and the subject matter of such rights, including: (a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and (b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under any laws, at common law or in equity.

“Learner” means a User that investigates and purchases Expert Services or items from Experts or identifies an Expert through the Service.

“Learning Request” means a an Expert Service awarded by a Learner via the Service, which may include a Learning Request listed by a Learner or directly proposed as a Learning Request to an Expert.

“Learner Request Board” means the area where Learners may post Requests for learning, and where Experts may make proposals for consideration and approval. “Course Reseller Board” means the area where Experts may resell courses at a given rate for purchase or bidding by Learners.

“Open Courses” is a Service operated by Opentute, it includes elements such as:

“Opentute”, “we”, “our”, or “us” means Open Tute Pty Limited (ACN 134 845 748).

“Profile Opinions & Ratings” means the feedback or rating system that is used by Opentute to rate users based Expert ability to deliver Expert Services or Learner’s ability to complete and pay for the classes.

“Service” means the Private Portals, Open Courses, together with other services and platforms operated by Opentute and available at: Opentute.com and any related Opentute services, tools or applications.

“Private Portal” “Private Label” or “Opentute Gold” is a Service operated by Opentute, which includes elements such as:

“User”, means an individual who visits or uses the Service.

“Private Portal Contract” means : (1) this Private Portal Administrator Agreement as amended from time to time; (2) User Agreement (https://opentute.com/user-agreement/) as amended from time to time; (3) the Privacy Policy (https://opentute.com/privacy-policy/) and Fees & Charges (https://opentute.com/fees-and-charges) as amended from time to time; (4) any other contractual provisions accepted by both the Expert and Learner uploaded to the Service, to the extent not inconsistent with the User Agreement and the Code of Conduct; and (5) the Requirements terms as awarded and accepted on the Service, to the extent not inconsistent with the Private Portal Administrator Agreement and the Code of Privacy Policy.

“Private Portal Administrator” is an administrator on a Private Portal running as a White Portal product but not the account holder.

“Private Portal Super Administrator”, “You” is the account holder responsible for the skin, Channel, account and user management for a Private Portal running as a White Portal product. Private Portal Super Administrator is responsible for all payments to Opentute when they fall due.

2. Eligibility as to use as a Private Portal Super Administrator

2.1 You will not use the Opentute Service if you:

2.2 Private Portal Super Administrator may provide a business name or a company name, which is to be associated with the account holder(s). The account holder(s) acknowledge and agree that where a business name or company name is associated with their Account, this Private Portal Super Administrator Agreement is also the contract with the account holder(s) as an individual and account holder(s) remain solely responsible for all activity undertaken in respect of their Account.

2.3 We may, at our absolute discretion, refuse to register a person or corporate entity as an account holder.

2.4 To protect your Account, keep your password confidential. You are responsible for the activity that happens on or through your Account. Try not to reuse your Account password on third-party applications.

3. Using Opentute

3.1 While using the Opentute Services, you must follow any policies made available to you may suspend you if you do not comply with our terms or policies or if we are investigating suspected misconduct.

3.2 Don’t misuse our Services. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We

3.3 Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.

3.4 Our Services display some content that is not Opentute’s. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law.

4. Prohibited conduct

4.1 While using the Opentute Service, you and the users of your Private Portal must not engage in the following activities:

  1. post content or items in inappropriate categories or areas on our Services and services;
    • (a) use Opentute Service for any illegal purpose or in violation of any local, state, national, or international laws;
    • (b) violate or encourage others to violate any right of or obligation to Opentute or a third party, including by infringing, misappropriating, or violating intellectual property, contractual rights, confidentiality, or privacy rights.
  2. post false, inaccurate, misleading, defamatory or offensive content (including personal information);
  3. take any action that may undermine the Profile Opinions & Ratings (such as displaying, importing or exporting feedback information or using it for purposes unrelated to the Opentute Service);
  4. transfer your Opentute account (including Profile Opinions & Ratings) and Username to another party without our consent;
  5. distribute viruses or any other technologies that may harm Opentute, the Service, or the interests or property of Opentute users (including their Intellectual Property Rights, privacy and publicity rights) or is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person;
  6. download and aggregate listings from our Service for display with listings from other non-Opentute services without our express written permission, “frame”, “mirror” or otherwise incorporate any part of the Service into any other non-Opentute Service without our prior written authorisation;
  7. attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by us in connection with the Opentute Service;
  8. copy, modify or distribute rights or content from the Opentute Service or Opentute’s copyrights and trademarks; or harvest or otherwise collect information about Users, including email addresses, without their consent.
  9. impersonate another person or entity, or misrepresent your affiliation with a person or entity when using our Services; use or attempt to use another’s account or personal information; and attempt to gain unauthorized access to the Services, or the computer systems or networks connected to the Services, through hacking password mining or any other means.

5. Duty to moderate users’ conduct

5.1 You would have the responsibility to moderate the activities and conduct of the users of your Private Portals. You must ensure that the users of your Private Portals are aware of the terms and conditions of use, which must be publicised on your Private Portal along with a Privacy Policy. You must ensure that to the greatest extent possible that the users of your Private Portals comply with the terms and conditions of use and as well the law of the local jurisdiction.

6. Privacy and Intellectual Property Protection

6.1 The Opentute Privacy Policy (https://opentute.com/privacy-policy/) explains how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that Opentute can use such data in accordance with our privacy policies.

6.2 We respond to notices of alleged copyright infringement and terminate accounts of infringers according to the laws of Australia. If you believe that your Intellectual Property rights have been violated, please notify us and we will investigate your notification. Please contact us by emailing us at accounts@opentute.com.

7. Fees & Charges

7.1 We charge fees as outlined in our schedule of Fees & Charges (https://opentute.com/fees-and-charges/), which we may change from time and time.

Unless otherwise stated, all fees are quoted in Australian Dollars. However, this is subject to change and may be charged in United States Dollars.

8. Taxes

8.1 You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable depending on the jurisdiction of the services provided. These taxes will be added to fees billed to you, if applicable.

8.2 As we are a company incorporated in Australia, all fees earned by us from Australian Users will be subject to a 10% Goods and Services Tax (GST) on all fees, which will be shown separately on all invoices.

8.3 You must also comply with any other obligations under tax provisions in your jurisdiction.

9. Payment Administration Agent

9.1 You acknowledge and agree that we may in our sole discretion, from time to time, appoint our related bodies corporate or a third party as our agent to accept or make payments (including merchant facilities) from or to Users on our behalf. Such a third party will have the same rights, powers and privileges that we have under this User Agreement and will be entitled to exercise or enforce their rights, powers and privileges as our agent or in their own name. In no event shall we be liable to any User for any loss, damage or liability resulting from the Payment Administration Agent’s negligence and/or acts beyond the authority given by Opentute.

10. Consents and Warrants

You consent and warrant the following:

10.1 You acknowledge and agree that we may display your name or company/business name, logo, images or other media, your public profile and Profile Opinions & Ratings, and public description of your requirements and profile as part of the Opentute Services and/or other marketing materials relating to the Opentute Service.

10.2 You acknowledge and agree to allow for Opentute automatically update Service /software for time to time in the future.

10.3 You acknowledge and consents that Opentute using professional third party hosting service companies such as Amazon Web Services Inc.

10.4 You further acknowledge that Opentute does not guarantee uptime of your Private Portal.

10.5 When you give us content, you grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future

10.6 You acknowledge and agree that: (1) we only act as a portal for the online distribution and publication of User content. We make no warranty that User content is actually made available on the Service. We have the right (but not the obligation) to take any action deemed appropriate by us with respect to your User content; (2) we have no responsibility or liability for the deletion or failure to store any content, whether or not the content was actually made available on the Service; and (3) any and all content submitted to the Service is subject to our approval. We may reject, approve or modify your User content at our sole discretion.

10.7 You represent and warrant that your content:

10.8 You acknowledge and agree that we may transfer your personal information to a related body corporate and your information may be transferred outside of Australia. If you wish to withdraw your consent, you acknowledge and agree that we may be unable to provide you with access to the Service and Opentute and may close your Account.

10.9 You acknowledge that the Service may contain general information about legal, financial, health and other matters. The information is not advice, and should not be treated as such. You agreed that you must not rely on the information on the Service as an alternative to professional advice. If you have specific questions about any matter you should consult your professional adviser.

10.10 We provide unmonitored access to third party content, including Profile Opinions & Ratings and articles with original content and opinions (or links to such third party content). We only act as a portal and have no liability based on, or related to, third party content on the Service, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other legal discipline.

10.11 The Service may contain links to other third party services. We do not control other third party services to which we link from the Service. We do not endorse the content, products, services, practices, policies or performance of the services we link to from the Service. Use of third party content, links to third party content and/or services is at your risk.

11. Profile Opinions & Ratings

11.1 You acknowledge that you transfer copyright of the feedback, reputation and reviews you leave on Profile Opinions & Ratings consisting of comments and a multidimensional rating (e.g. quality, communication etc.) together with a composite rating by us. You acknowledge that such feedback, reputation and reviews belong solely to us, notwithstanding that we permit you to use it on our Service while you remain a User. You must not use, or deal with, such feedback, reputation and reviews in any way inconsistent with our policies as posted on the Service from time to time without our prior written permission.

11.2 You may not do (or omit to do) anything that may undermine the integrity of the Opentute feedback system. We are entitled to suspend or terminate your Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating, where we believe our feedback system may be subverted.

11.3 Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of Expert Services via the Opentute Service. You may not use your Expert or Learner Profile Opinions & Ratings (including, but not limited to, marketing or exporting your any or all of your composite rating or feedback comments) in any real or virtual venue other than a Service operated by Opentute or its related entities without our written permission.

12. Advertising

12.1 We permit you to engage with third party or sponsor advertisement on your Private Portal so far as the said advertisement complies with law of the local jurisdiction and Private Portal Contract. Please note that there is a 2.5% plus GST charge on all revenue generating transactions on your Private Contract pursuant to our Fees and Charges (https://opentute.com/fees-and-charges/), this includes any advertisements which is generates an income.

12.2 We may display sponsor advertisements and promotions on the Service. You acknowledge and agree that we shall not be responsible for any loss or damage of any kind incurred by you as result of the presence of such advertisements/ promotions in the Service or your subsequent dealings with the Advertisers. Furthermore, you acknowledge and agree that content of sponsor advertisements or promotions is protected by copyrights, trademarks, service marks, patents or other intellectual property or proprietary rights and laws. Unless expressly authorised by Opentute or third party right holders, you agree not to modify, sell, distribute, appropriate or create derivative works based on such advertising/promotions.

13. Business uses of our Services

If you are using our Service on behalf of a business/company/organisation, that business/company/organisation accepts these terms. It will hold harmless and indemnify Opentute and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and legal fees.

14. Indemnification

To the extent authorized by law, you agree to indemnify and hold harmless Opentute, its employees, officers, directors, affiliates, and agents from and against any and all claims, losses, expenses, damages, and costs, including reasonable attorneys fees, resulting directly or indirectly from or arising out of (a) your violation of the Terms, (b) your use of any of the Services, and/or © the Content you make available on any of the Services.

15. About these Terms

15.1 We may modify these terms or any additional terms that apply to a Service. You should look at the terms regularly. Changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms a Service, you should discontinue your use of that Service.

15.2 If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.

15.3 These terms control the relationship between Opentute and you. They do not create any third party beneficiary rights.

15.4 If you do not comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).

15.5 If it turns out that a particular term is not enforceable, this will not affect any other terms.

15.6 The laws of New South Wales, Australia, excluding New South Wale’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of New South Wales, Australia and you and Opentute consent to personal jurisdiction in those courts.

15.7 No waiver: Either party’s failure to insist on or enforce strict performance of any of the Terms will not be construed as a waiver of any provision or right.

15.8 Severability: If any part of the Terms is held to be invalid or unenforceable by any law or regulation or final determination of a competent court or tribunal, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions.

15.9 No agency relationship: The parties agree that no joint venture, partnership, employment, or agency relationship exists between you and Opentute as a result of the Terms or from your use of any of the Services.

15.10 Integration: These Master Terms and Conditions and any applicable Additional Terms constitute the entire agreement between you and Opentute relating to this subject matter and supersede any and all prior communications and/or agreements between you and Opentute relating to access and use of the Services.

16. Disclaimer of Warranties

To the fullest extent permitted by applicable law, Opentute offers the services (including all content available on or through the services) as-is and makes no representations or warranties of any kind concerning the services, express, implied, statutory, or otherwise, including without limitation, warranties of title, merchantability, fitness for a particular purpose, or non-infringement. Opentute does not warrant that the functions of the services will be uninterrupted or error-free, that content made available on or through the services will be error-free, that defects will be corrected, or that any servers used by Opentute are free of viruses or other harmful components. Opentute does not warrant or make any representation regarding use of the content available through the services in terms of accuracy, reliability, or otherwise.

17. Limitation of Liability

17.1 To the fullest extent permitted by applicable law, in no event will Opentute be liable to you on any legal theory for any incidental, direct, indirect, punitive, actual, consequential, special, exemplary, or other damages, including without limitation, loss of revenue or income, lost profits, pain and suffering, emotional distress, cost of substitute goods or services, or similar damages suffered or incurred by you or any third party that arise in connection with the services (or the termination thereof for any reason), even if Opentute has been advised of the possibility of such damages.

17.2 To the fullest extent permitted by applicable law, Opentute is not responsible or liable whatsoever in any manner for any content posted on or available through the services (including claims of infringement relating to that content), for your use of the services, or for the conduct of third parties on or through the services.

17.3 Certain jurisdictions do not permit the exclusion of certain warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. In these jurisdictions, the foregoing exclusions and limitations will be enforced to the greatest extent permitted by applicable law.

Feedback

If you have any questions about this User Agreement or if you wish to report breaches of this User Agreement, please contact us by using our customer support Service or emailing us at accounts@opentute.com.