Terms and Conditions – The Learning Bar
These terms and conditions comprise the entire agreement (the “Agreement”) between The Learning Bar Pty Ltd (“TLB”, “we” or “us”) and a school's representative or other individual authorized by the school agreeing to these terms and conditions on behalf of the school, or an individual in her or his own capacity, not affiliated with or acting on behalf of a school (“you”, or “Customer”), with respect to the purchase of and/or access to any TLB product or service, including but not limited to the TLB website (thelearningbar.com or thelearningbar.com.au) and the Online Survey website, www.TTFM.net (the “Survey Website”) and/or www.earlyyearsevaluation.com, collectively, the “Websites”), as well as all single-use Surveys, TLB Activity Card Sets, Activity Cards for families, Kit Supplies for assessments, downloads of published works, and any other product made available by TLB from time to time (collectively, the TLB “Product”). For the purposes of this Agreement, the term "Subjects" shall mean the Customer's Survey participants, and "Administrative Users" shall mean the Customer's employees who are assigned by the Customer to administer the Customer's account and to issue passwords and usernames to the Subjects.
Note that this Agreement includes provisions that limit the liability of TLB.
Modifications to the Terms and Conditions and to the Websites
We reserve the right in our sole discretion to revise and update these terms and conditions from time to time. Any and all such modifications are effective immediately upon posting or as of the date indicated in the notice and apply to all access to and continued use of the Websites. Customer agrees to periodically review the terms and conditions in order to be aware of any such modifications and Customer's continued use shall be deemed acceptance of these.
The information and material on the Websites may be changed, withdrawn or terminated at any time in our sole discretion without notice. We will not be liable if for any reason all or any part of the Websites is restricted to users or unavailable at any time or for any period.
Use of Websites, Account Set-up and Security
The Customer is responsible for maintaining the confidentiality of the Customer's account designation information and passwords issued by its Administrative Users to Subjects, and any passwords chosen by the Customer. Usernames and passwords are randomly assigned by TLB for access to Surveys. For Administrative Users, randomly-generated passwords are provided upon account set up, followed with a prompt to create a secure password upon login. The Customer is fully responsible for all activities that occur under its passwords and account. The Customer must notify TLB immediately of any known or suspected unauthorized use of its account or any passwords issued in relation to its account, or any other breaches of security involving the Websites. The Customer acknowledges and accepts that TLB is not liable in any way for any losses or damages arising as a result of any failure by the Customer to comply with this provision.
We reserve the right at any time and from time to time, to disable or terminate your account, any user name, password, or other identifier, whether chosen by you or provided by us, in our sole discretion for any or no reason, including any violation of any provision of these terms and conditions.
You are prohibited from attempting to circumvent and from violating the security of the Websites including without limitation: (a) accessing content and data that is not intended for you; (b) attempting to breach or breaching the security and/or authentication measures which are not authorized; (c) restrict disrupt or disable service to users, hosts, servers or networks; (d) illicitly reproducing TCP/IP packet header; (e) disrupting network services and otherwise disrupting Websites owner's ability to monitor the Websites; (f) use any robot, spider, or other automatic device, process, or means to access the Websites for any purpose, including monitoring or copying any of the material on the Websites; (g) introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful; (h) attack the Websites via a denial-of-service attack, distributed denial-of-service attack, flooding, mailbombing or crashing; and (i) otherwise attempt to interfere with the proper operation of the Websites.
You understand and agree that the Websites and their entire contents, features, and functionality, including but not limited to all information, survey questions ("Survey Questions"), software, storage mechanisms, databases, processes, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement, are owned by TLB, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
TLB hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, revocable license, to access and use the Websites for non-commercial purposes (the "License"). Upon the expiration or termination of this Agreement, the License will immediately and automatically cease.
Customer use of the Websites may involve the collection, use and disclosure of certain student, teacher and parent information (the "Information") to the Websites in order to complete a survey. Except where explicitly required by law, the Customer agrees that it shall not have the right to access the raw data gathered through the Websites, to protect the anonymity of the Information. TLB shall use the Information to generate reports to summarize and analyze responses to each of the Survey Questions (the "Reports"). TLB hereby grants to the Customer a non-transferable and non-exclusive right to use the Reports for the Customer's own purposes, provided that the Customer does not distribute or otherwise make available to third parties the Survey Questions accessible within the Reports or the Websites. The Customer expressly acknowledges and accepts that the Survey Questions are the proprietary information of TLB. The Customer agrees that the Customer shall not use the Survey Questions for any purpose except in relation to and as part of the Customer's Reports and for no other purpose, including in any manner that is competitive to TLB. The Customer shall indemnify TLB for any losses or damages that TLB suffers as a result of the Customer's failure to comply with this section or breach of any representation made herein.
Information is comprised of both quantitative (meaning responses that are measurable by empirical means) and qualitative elements (meaning responses that are expressed by Subjects in sentences and phrases, such as those made to open-ended Survey Questions). The Customer acknowledges that the Information is generated as a result of responses by Subjects to the Survey Questions. TLB is not responsible for the Information inputted to the Websites and does not guarantee the accuracy, integrity, quality or substance of the inputted Information.
Use of Information by TLB
The Customer hereby grants to TLB the non-exclusive, non-transferable and revocable license to Use the Information:
to generate Reports;
for the writing of research papers; and/or
for the disseminating of general information about TLB's services and deliverables;
provided that TLB at all times in its use of the Information complies with its obligations under this Agreement as to confidentiality and compliance with applicable privacy laws. No other use shall be made of the Information by TLB without the prior written permission of the Customer. Additionally, any use by TLB of the Customer's name or logos in respect of the foregoing Use of the Information shall be subject in each case to the Customer's prior written consent.
Payment for any services available through the Websites or for any Product must be made using PayPal or via direct invoice arrangements via email@example.com.
Access to Surveys: Websites
After full payment has been confirmed through PayPal or via direct invoicing, TLB will provide a login and temporary password for the Surveys, available on the Websites to the Customer. No cancellations or returns are possible once the payment has been processed through "store.thelearningbar.com". If the full payment does not clear, TLB reserves the right to immediately cancel the Customer's order and Websites access.
Purchase of or Access to TLB Product
All other Product purchases are processed through "store.thelearningbar.com", using PayPal or direct invoicing. No cancellations, returns or refunds are possible once payment has been processed. If any Product arrives damaged (and damage occurred in transit or prior to transit), TLB will send Customer a replacement product with satisfactory proof of purchase and photographic evidence of damage. The Customer is responsible for all shipping and courier charges.
Currency. All dollar amounts referred to in www.thelearningbar.com.au are expressed in Australian funds.
Gender and Number. Where appropriate, the use of one gender includes all genders and the use of the singular number includes the plural (and vice versa).
Articles, Sections and Headings. The division of this Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
Governing Law. These Terms & Conditions shall be governed by and construed in accordance with the laws of the state of New South Wales, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Website or these Terms & Conditions shall be filed only in the state or federal courts located in New South Wales and you hereby irrevocably consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
Force Majeure. In no event shall TLB or Customer be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that both TLB and Customer shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
Disclaimer of Warranties
You understand and agree that your use of the Websites, their content, and any services or items found or attained through the Websites is at your own risk. The Websites, their content, and any services or items found or attained through the Websites are provided on an "as is" and "as available" basis, without any warranties of any kind, either express or implied including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
Neither TLB nor any affiliates nor their respective directors, officers, employees, agents or service providers makes any warranty, representation or endorsement with respect to the completeness, security, reliability, suitability, accuracy, currency or availability of the Websites or their contents. Without limiting the foregoing, neither TLB nor any affiliates nor their respective directors, officers, employees, agents or service providers represents or warrants that the Websites, their content, or any services or items found or attained through the Websites will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, that our site or the server that makes it available are free of viruses or other harmful components.
We cannot and do not guarantee or warrant that files or data available for downloading from the internet or the Websites will be free of viruses or other destructive code. You are solely and entirely responsible for your use of the Websites and your computer, internet and data security. To the fullest extent provided by law, we will not be liable for any loss or damage caused by denial-of-service attack, distributed denial-of-service attack, overloading, flooding, mailbombing or crashing, viruses, trojan horses, worms, logic bombs, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the websites or any services or items found or attained through the websites or to your downloading of any material posted on it, or on any website linked to it.
Limitation on Liability
Under no circumstance will TLB, its affiliates and their respective directors, officers, employees, agents, or service providers be liable for negligence, gross negligence, negligent misrepresentation, fundamental breach, damages of any kind, under any legal theory, including any direct, indirect, special, incidental, consequential, or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, breach of privacy or otherwise, even if the party was allegedly advised or had reason to know, arising out of or in connection with your use, or inability to use, reliance on, the Websites, any linked websites or such other third party websites, nor any site content, materials, posting or information thereon.
The Customer hereby agrees to defend, indemnify and hold harmless TLB and its shareholders, directors, officers, employees or agents from and against all liability, claims, demands, losses, fees (including reasonable lawyers' fees) or damages caused, or alleged to be caused, in whole or in part by the negligence of the Customer or otherwise, or for the refusal or omission to act on any information provided by the Participants in a Survey, or in any way relating to a breach of this Agreement; and further agrees that if, despite this indemnification and waiver of liability and assumption of risk, anyone, including an Subject or Administrative User or other person, makes a claim against TLB or its shareholders, directors, officers, employees or agents, the Customer will indemnify, save, and hold harmless each of TLB or its shareholders, directors, officers, employees or agents, from any litigation expenses, legal fees on a solicitor client basis, loss, liability, damages, or costs which may be incurred as the result of such claim. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.