About these Terms

Welcome to Endorba (the “Application”). The Application allows you to access tools and resources that enable you create and maintain a library of your own courses on a computer system (the “Services”).

The Application is operated by Hulloss Pty Ltd (ACN 632 273 191) (“Hulloss”). Access to and use of the Application, or any of its associated Products or Services, is provided by Hulloss. Please read these terms and conditions (the “Terms “) carefully. By using the Application, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Application, or any of its Services, immediately.

Hulloss reserves the right to review and change any of the Terms by updating this document at its sole discretion. Any changes to the Terms take immediate effect from the date of their publication. When Hulloss updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. We recommend you keep a copy of the Terms for your records.

If the Services are terminated as defined by section ‘Modification or Termination of Service’, these Terms will also terminate, but Sections ‘About these Terms’, ‘Exclusion of Warranties’, ‘Limitation of Liability’ and ‘Indemnity’ shall remain effective after these Terms are terminated.

Acceptance of the Terms

You accept the Terms by using the Application. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Hulloss in the user interface of the Application.

You understand and agree that if you use the Services after the date on which the Terms have changed, Hulloss will treat your continued use of the Services as acceptance of the updated Terms.

Registration to use the Services

In order to access the Services, you must first register for an account through the Application (the “Account”).

As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including a functional email address. You warrant that any information you give to Hulloss in the course of completing the registration process will always be accurate, correct and up to date.

Once you have completed the registration process, you will be a registered member of the Application (“Member”) and agree to be bound by the Terms.

You may not use the Services and may not accept the Terms if you are not of legal age to form a binding contract with Hulloss; or you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

You may not use the Services and may not accept the Terms if you are:

• Less than eighteen (18) years of age; or
• not of legal age to form a binding contract with Hulloss; or 
• you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

Access and use of the Application is limited, non-transferable and allows for the sole use of the Application by you for the purposes of Hulloss providing the Services.

Your obligations as a Member

As a Member, you agree to comply with all of the conditions specified in this section.

You will use the Services only for purposes that are permitted by the Terms; and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.

You have the sole responsibility for protecting the confidentiality of your password and access to the email address used to identify your account. Use of your account by any person other than you is prohibited and may result in the immediate cancellation of provision of the Services to you.

You agree to immediately notify Hulloss of any unauthorised use of your password or email address or any breach of security of which you have become aware.

You acknowledge that you may not be able to access your account if you are unable to access the email address that your account is registered to.

You are responsible for all activities or actions exercised by your Account, and you should immediately notify Hulloss if you learn of any unauthorised use of your Account. 

You acknowledge that Hulloss may delete user accounts (and any associated data) for which no user activity has been detected for an extended period of time.

You will not use the Services or the Application in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Hulloss.

If any part of (or your use of) the Application or Services, is contrary to the laws of the area where you are when you access it, then they are not intended for you and we ask that you do not use the Application or Services in such a scenario. You are responsible for informing yourself of the laws of your jurisdiction and complying with them.

You will not use the Services or Application for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Application.

You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Application without notice and may result in termination of the Services. Appropriate legal action will be taken by Hulloss for any illegal or unauthorised use of the Application.

You acknowledge and agree that any automated use of the Application or its Services is prohibited.

Supplemental Terms

Your use of certain components of the Services may be subject to separate licence agreements or additional terms of service (“Supplemental Terms”). If any conflict exists between these Terms and the Supplemental Terms then the Supplemental Terms will govern within the particular domain that the Supplemental Terms apply to.

Hulloss may make some products and services available for purchase from within the Application (the “Paid Services”). The terms and conditions that apply to the purchase and usage of these services are found in the document Endorba Plus: Terms of Service.

Copyright and Intellectual Property

The Application, the Services and all of the related products of Hulloss are subject to copyright. The material on the Application is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Application (including but not limited to text, graphics, logos, button icons, video images, audio clips, Application, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Hulloss or its contributors.

All trademarks, service marks and trade names are owned, registered and/or licensed by Hulloss, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to use the Application pursuant to the Terms.

Hulloss does not grant you any other rights whatsoever in relation to the Application or the Services. All other rights are expressly reserved by Hulloss.

Hulloss retains all rights, title and interest in and to the Application and all related Services. Nothing you do on or in relation to the Application will transfer any:

• business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
• a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
• a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),

to you.

You may not, without the prior written permission of Hulloss and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Application, which are freely available for re-use or are in the public domain.

Privacy and Protection of Personal Information

We take your privacy seriously and any information provided through your use of the Application and/or Services are subject to the Endorba Privacy Policy.

You agree not to gather, process, or store any Sensitive Personal Information using the Services. You agree not to transfer, reveal, or make available any Sensitive Personal Information to Hulloss or Hulloss’s third-party providers.

Sensitive Personal Information refers to information relating to:

• an individual’s medical status,
• an individual’s finances,
• an individual’s sexual preferences,
• an individual’s health information that is protected under any health data protection laws,
• biometric data (whose purpose is to uniquely identify an individual),
• the personal information of children that is protected by any child data protection laws (such as ‘Personal Information’ as defined by the U.S. Children’s Online Privacy Protection Act (“COPPA”))

and any additional information categories as may be defined within similar clauses (such as ‘Special Categories of Personal Information’ or ‘Sensitive Personal Data”) of any relevant privacy or data protection laws.

We store and process information in Australia and other countries. By using the Services, you agree that you authorise Hulloss to transfer your personal information across national borders and to other countries where Hulloss and its associates operate.

General Disclaimer

Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

Subject to this clause, and to the extent permitted by law:

• all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
• Hulloss will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

Use of the Application and the Services is at your own risk. Unless stated in Supplemental Terms, the Application and the Services are provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Hulloss make any express or implied representation or warranty about the Application or the Services. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

• failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
• the accuracy, suitability or currency of any information on the Application, the Services, or any of its Services related products (including third party material and advertisements on the Application);
• costs incurred as a result of you using the Application, the Services or any of the products of Hulloss; and
• the Services or operation in respect to links which are provided for your convenience.

Education Services

By using our services, you agree that Hulloss is not to be held liable for any decisions you make based on any of our services or guidance and any consequences, as a result, are your own. Under no circumstances can you hold Hulloss liable for any actions you take nor can you hold us or any of our employees liable for any loss or costs incurred by you as a result of any guidance, advice, coaching, materials or techniques used or provided by Hulloss or accessed via the Application.

All our information on both the website and in consultations is intended to assist you and does not in any way, nor is it intended to substitute professional, financial or legal advice. Results are not guaranteed and Hulloss takes no responsibility for your actions, choices or decisions.

Competitors

If you are in the business of providing similar Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Hulloss. Competitors are not permitted to extract or use any information or content from the Application. If you breach this provision, Hulloss will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.

Limitation of liability

You expressly understand and agree that Hulloss, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

Hulloss’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the greater of (A) fifty Australian dollars (AUD $50.00); or (B) the aggregate amount that you paid for access to the Services during the three-month period prior to the event that gave rise to the liability.

Modification or Termination of Service

The Terms will continue to apply until terminated by either you or Hulloss as set out below.

Hulloss may at any time, terminate the Terms with you if:

• you have breached any provision of the Terms or intend to breach any provision;
• Hulloss is required to do so by law;
• the provision of the Services to you by Hulloss is, in the opinion of Hulloss, no longer commercially viable.

Subject to local applicable laws, Hulloss reserves the right to discontinue or cancel your account at any time and may restrict, suspend or deny, in its sole discretion, your access to all or any portion of the Application or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Hulloss’s name or reputation or violates the rights of those of another party.

The Services will be continuously modified over time, and features or functionalities may be added or removed as required. Hulloss may temporarily suspend the Service or discontinue the Service altogether. Hulloss may alter or impose fees for your access to and use of the Services at any time.

Exclusion of Warranties

Hulloss provides the Services to you “as is” and “as available”, featuring all faults and without warranty of any nature to the maximum extent permitted by applicable law. You acknowledge and agree that use of the Services are at your sole risk and that any and all risk relating to satisfactory quality, performance, accuracy, security and effort is with you.

Hulloss continually works to keep the Services working optimally, however unforeseen technical malfunctions of the many component parts that make up the Services can sometimes occur. You acknowledge that the Services may occasionally be limited or disconnected for maintenance or to resolve issues. Hulloss is not obliged to offer uninterrupted access to the Services. Hulloss provides no warranty that you will always be able to access the Services.

No written or oral advice or information provided by Hulloss or any of its authorised representatives shall create or imply a warranty of any kind. Should the Application or Services prove defective, you agree to assume all necessary servicing, repair, or correction expenses. If the jurisdiction that you reside in does not allow the exclusion of implied warranties or limitations on applicable statutory consumer rights, the above exclusion and limitations may not apply to you.

If you share your User Content using the Services, Hulloss is not responsible for: 

• the deletion of User Content; or
• any loss, corruption, or damage to your User Content;
• any actions of other users or of third parties with respect to your User Content.

Indemnity

You agree to indemnify Hulloss, its affiliates, employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with:

• any direct or indirect consequences of you accessing, using or transacting on the Application or Services, or attempts to do so; and/or
• your User Content;
• any breach of the Terms.

Feedback

Hulloss has a policy of not accepting unsolicited ideas relating to its business, or potential business interests, including but not limited to ideas relating to new products, product names, advertising or marketing plans, technology concepts or creative artwork.

Hulloss asks that you do not submit any unsolicited ideas for review such that any potential confusion and/or disputes relating to future Hulloss creative and business decisions can be avoided.

You have no duty to supply Hulloss with usage reports, bug reports, crash reports, suggestions, proposals or any other ideas (“Feedback”). If you do supply Feedback to Hulloss however, then you grant Hulloss a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sub-licensable and transferable licence to use, create, sell, offer for sale, have created, reproduce, publicly display, publicly perform, distribute, alter, import and export the Feedback.

User Content

All user-generated information that you may have access to as part of the Services (the “User Content”) are the sole responsibility of the person from which such information originated.

You agree that you will not use the Services to:

• create, store, upload, transmit or otherwise make available any unlawful User Content;
• engage in any act of copyright infringement or intellectual copyright infringement;
• make available any material (including computer programs, viruses, malware or files) that is intended to impede the normal operation of the Services;
• plan or participate in any illegal activity.

You maintain ownership of the User Content you create within or submit to the Services. Hulloss does not claim intellectual property rights or ownership of any User Content you create within or submit to the Services.

Hulloss may require particular limited rights to your User Content in order to operate and improve the Services. You grant Hulloss, its associates and its affiliates a worldwide, non-exclusive license to use, store, host, modify, duplicate, transmit and create derivative works of your User Content, without any compensation to you (the “User Content License”).

The User Content License permits Hulloss to transmit your User Content across various public networks, in various formats, and modify your User Content as required to suit the technical requirements of various networks or computer systems, in order to provide the Services to you.

You must ensure that you have the necessary rights to grant Hulloss a User Content Licence for any User Content you create within or submit to the Services.

You accept all responsibility for maintaining suitable backup versions of your User Content. Hulloss will take all reasonable measures and care in providing the Services to you, but accepts no liability for the corruption, loss or failure to store any User Content you create or submit to the Services.

Sharing User Content

The Application may feature the option to allow you to share your User Content with other Application users or publicly. When you share your User Content with other users (or publicly) you will be allowing other users to view and possibly modify your User Content.

Please carefully contemplate the items of User Content that you select to share with others, as you are entirely responsible for the User Content that you choose to share.

If you share your User Content, you will be responsible for determining the access control limitations that are placed upon each sharing arrangement. If you do not specify a particular access control limitation for a sharing arrangement, the Application may apply its default access control setting, which may be the most permissive setting available. It is your responsibility to advise other users of how your User Content may be accessed and to adjust access control settings as required for each User Content sharing arrangement.

If you share your User Content, you grant each user of the Services that you choose to share your content with (a “Recipient User”) a worldwide, non-exclusive, royalty-free license to access your User Content via the Application, and to use that User Content, including to modify, reproduce, display and perform it, as is allowed by a feature of the Application. This licence does not grant recipient users any permissions or rights to make use of your User Content outside the domain of the Application.

Third Party Content

The Application may present, feature, or otherwise make available third-party materials (including applications, data, information, and other products, services, and/or materials) or provide links to third-party web sites or services, including through third-party advertisements (“Third-Party Content”).

You acknowledge and agree that Hulloss is not responsible for assessing or evaluating Third-Party Content, including its quality, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, or any other aspect thereof. Hulloss does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Content.

Third-Party Content and links thereto are offered solely as a convenience to you, and your access and use of them is entirely at your own risk and subject to such third parties’ terms and conditions.

Affiliate Disclosure

We may receive compensation for the promotion and provision of references to products or services on within the application. Where required, we adhere to Australian ACCC guidelines.

The compensation may be in the form of money, services, products, discounts, or special access and could exist without any action from an application user. Should you purchase a product or service that was promoted within the application, it is understood that some form of compensation may be made to us by the owners of that product or service.

This Affiliate Disclosure has been provided for your protection and to fully disclose any relationship between us and the owners of any products or services referenced by the application.

Dispute Resolution

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties “) must:

• Within 90 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
• If for any reason whatsoever, 90 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Australian Mediation Association;
• The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of any venue of mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
• The mediation will be held in Melbourne, Australia.
• The mediation will be conducted in the English language.

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

If 60 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

You may only resolve disputes with Hulloss on an individual basis, and you may not bring a claim as a plaintiff or a class member in a representative, consolidated, or class action.

Governing Law & Venue

Unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction you agree that the laws of the state of Victoria, Australia, excluding its conflicts of law rules, shall apply to this agreement and your use of the Licensed Application and associated Services. 

In the event that Hulloss is unable to settle any dispute with you, then any proceeding, claim or court or arbitration proceedings of whatever nature arising out of or in any way relating to the Terms, the Application or any associated Services shall be held in Victoria, Australia only. You and Hulloss each waive any right to a jury trial. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

Your use of the Licensed Application and associated Services may also be subject to other local, state, national, or international laws.

The United Nations Convention on the International sale of goods is specifically excluded from this agreement.

Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

Other Items

Headings contained within the Terms are provided for convenience only and will not be used to define intent.

The English (AU) version of the Terms will be the version applied when interpreting the Terms.