Subscription Agreement

The terms and conditions contained in this Subscription (Subscription Agreement) constitute a legally binding contract between SleepWell AU/NZ Pty Ltd ACN 660 776 349 (SWAunz, SLA, We, Our, Us and other similar terms) and apply to the contract with you (Subscriber, End User You, Your and other similar terms) and Your use of Our website (SWAunz Platform).  Each of SWAunz and the Subscriber are a “Party” to this Subscription Agreement and collectively they are the “Parties”.

Our contact information is as follows:

SleepWell AU/NZ Pty Ltd ACN 660 776 349
Karina Patel and Sarah Beach, Directors
PO Box 325, Wellers Hill, QLD 4121
Telephone: 0415 173 840  | Email: [email protected]

                                       1.       Acknowledgment

By clicking “I Accept”, the Subscriber:

(a) acknowledges and agrees to having had sufficient opportunity to read and understand the terms and conditions contained in this Subscription Agreement and that You are legally able to bind the Subscriber to this Agreement.

(b) You acknowledge that these terms and conditions were brought to your attention prior to accepting them.

(c) In agreeing to these terms and conditions, the Subscriber warrants that:

(i) the information provided regarding Your contact information is accurate; and

(ii) SWAunz may contact you to confirm information in relation to your offer.

If You are not prepared to be bound by these terms and conditions,

You must immediately leave this website.

                       2.         Definitions & interpretation

                       2.1       Definitions

In this Subscription Agreement, unless the context or subject matter otherwise require:

Annual Fee means the amount of money that an Annual Subscriber agrees to pay for access to all Courses and the Profile on the Platform during the Term.

Annual Subscriber means a Subscriber that has elected to pay the Annual Fee for the right to access the Platform for the Term.

Agreement means the terms and conditions contained in this Subscription Agreement.

AHPRA means https://www.ahpra.gov.au/Registration/Continuing-Professional-Development.aspx

AHPRA Registration Number means a number used by AHPRA in relation to the registration of one of its members.

CPD means continuing professional development required by an AHPRA Member to attend continued professional development on an annual basis in order to maintain their membership.

Certificate of Attendance means an automated certificate provided by email, and a statement on the Subscriber’s Profile that shows what Courses the Subscriber has completed during a CPD Year on the Platform.

CPD Requirements means the obligation to attend/complete ongoing professional development as required by https://www.ahpra.gov.au/.

Business Day means:

(a)        for receiving a Notice, means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the Notice is received; and

(b)        for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in – Queensland, Australia.

Cancellation Notice means at least seven (7) days’ notice prior to anniversary of the Subscription Date.

Charge Date means the date that the Subscriber obtains an Annual Subscription and the right to access the Platform by paying the Annual Fee.

Content means Courses including Data, music, speech or other sounds, text, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth), including but not limited to, data files, graphics images, messages, photographs, sounds, videos, written text and any other like materials.

Commencement Date means the date that a Subscriber agrees to the terms and conditions contained in this Subscription Agreement and pays the Annual Fee or a Per Course Fee.

Course means a course that is CPD Compliant that may be accessed by Subscribers with an Annual Subscription or accessed by paying a Per Course Fee.

CPD Compliant means a Course that is available on the Platform that may be used by a Subscriber for the purposes of substantiating their compliance with the AHPRA CPD Requirements.

Data means any information including Content that Sleepwell AU/NZ publishes on the Platform and makes available to the Subscriber to access and use.

Dependent Software means any software which a Subscriber must have installed in order to access the Content on the Platform to operate effectively as shown at 3.8 (if required).

Fee means the Annual Fee or the Per Course Fee payable by Annual Subscribers or Pay As You Go Subscribers respectively.

Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them). 

Pay As You Go Subscriber means a Subscriber that elects to pay the Per Course Fee instead of the Annual Fee for their Subscription.

Per Course Fee means and amount of money payable by a Pay As You Go Subscriber for the right to access an individual Course on the Platform on the terms shown on Our Website.

Platform means the location where the Subscriber obtains access to the Courses and a Profile pursuant to the terms and conditions contained in this Agreement.

Profile means a feature on the Platform that enables Subscribers to store information about their AHPRA CPD Compliance the remains accessible open for the period of five years after expiry of the Term or the date that they paid the Per Course Fee.

Record Keeping means the records that must be kept by AHPRA members in relation to their CPD requirements in order to be compliant with the terms of their registration with an AHPRA regulated professional body.

Subscriber means a Pay As You Go Subscriber or an Annual Subscriber. 

Subscription means the right of an end user to access the Courses on the Platform and the Profile by paying the Annual Fee or by paying the Per Course Fee.

Subscription Date means the date that the terms and conditions contained in this Agreement commence.

Term means the period of time that an Annual Subscriber obtains the right to access and view the Courses and that are made available on the Platform – being twelve (12) months from the Commencement Date.

Website means the website located at the URL www.sleepwellau-nz.com where the Course and the Profile can be accessed.

                        2.2     Interpretation

In this Agreement reference to:

(b)        one (1) gender includes the others;

(c)         the singular includes the plural and the plural includes the singular;

(d)        a person includes a body corporate;

(e)        a Party includes the Party’s executors, administrators, successors and permitted assigns;

(f)          to an amount of money, to $, $A or dollar is a reference to the currency of Australia;

(g)        a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:

(i)          that Statutory Provision as amended or re-enacted from time to time; and

(ii)         a statute, regulation or provision enacted in replacement of that Statutory Provision;

(h)        including and similar expressions are not words of limitation;

(i)          where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

(j)          headings are for convenience only and do not form part of this Agreement or affect its interpretation;

(k)         a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.

3.         Commencement of rights

                       3.1       Commencement and renewal of the Term

(a)        The terms and conditions in this Agreement commence on the Commencement Date by the Subscriber:

(i)          agreeing to be bound by these terms and conditions; and

(ii)         paying the amount of the Annual Fee associated with the Term of its Subscription; or

(iii)        the amount associated with one (1) Per Course Fee; and

(iv)       continues for the Term unless terminated in accordance with its terms.

(b)        For Annual Subscribers:

After the expiry of the Term, the right to access the Platform continues on a year to year basis in exchange for the payment of a further Annual Fee on the same terms unless agreed otherwise in accordance with clause 3.6.

(c)         For Pay As You Go Subscribers:

(i)          that elect to pay the Per Course Fee, there is no option to renew their Subscription and the right to continue to access the Course paid for applies only for the duration shown on our Website .

(d)        For both Annual Subscribers and Pay as You Go Subscribers, the right to access the Platform and the Profile for the purposes of adducing evidence of their attendance at CPD Compliant Courses continues for five (5) years after the end of the Term or the date that the Pay As You Go Subscriber paid a Per Course Fee.

                                       3.2       Rights granted to Annual Subscribers:

(a)        On the Commencement Date We grant the Annual Subscriber a:

(i)          non-exclusive;

(ii)         non-transferrable;

(iii)        non-sublicensable right to access the Platform during the Term to view all available Courses; and

(iv)       access the Profile.

                        3.3       Rights granted to Pay As You Go Subscribers

(a)        On the Commencement Date We grant the Pay As You Go Subscriber a:

(i)          non-exclusive;

(ii)         non-transferrable;

(iii)        non-sublicensable

(b)        right to access the Platform and the Profile and pay the Per Course Fee to view the Courses paid for as described on our Website                                              .

                                        3.4       Use of the Platform

(a)        All Subscribers agree:

(i)          to use the Platform only for the purposes of its own CPD Compliance as required by AHPRA;  

(ii)         access the Courses and store the Certificates of Attendance in their Profile in accordance with Our directions and the Documentation;

(iii)        to the Fees as required depending on the type of their Subscription;

(iv)       not to share their username and access credentials to the Platform with any other person; and

(v)         otherwise comply in all respects with its obligations contained in this Agreement.

                                                       3.5       Payment of the Fee

(a)        Annual Subscribers agrees to pay the amount of the Annual Fee in exchange for the right to access the Platform for the Term;

(b)        Pay As You Go Subscribers agree to pay the amount of the Per Course Fee in exchange for the right to access the selected Course and access the Profile on the Platform; and

(c)         Subscriber agrees to pay Fees in the manner We reasonably require.

                                       3.6       Refunds

(a)        If You believe that You are entitled to a refund, You must send a request to Us at the contact details set out in clause 1.1; and

(b)        We will consider Your request and determine if you qualify for a refund on a case-by-case basis.

                       3.7       Renewal or extension of the Term – Annual Subscribers

(a)        One (1) month prior to the expiry of the Term, We will notify the Annual Subscriber that the Term of their Subscription is about to expire;

(b)        If We do not hear from the Subscriber, We will then invoice the amount of the Fee or automatically charge the credit card previously provided on the anniversary of the Commencement Date for the cost of the Annual Subscription for a further Term;

(c)         If the Subscriber fails to contact us agreeing to enter into a further Term (or fails to notify us that they want to cancel), or if the credit card provided is unable to be charged, We will advise the Subscriber of this and the right to access Content on the Platform will cease; and

(d)        The Subscribers right to access its Profile continues in accordance with 3.1(c).

                      3.8       Technical requirements to access the Platform

The Subscriber must have a:

(a)        an ADSL internet access account or greater:

(b)        a current AHPRA Registration Number; and

(c)         a modern internet browser.

Otherwise the Platform is able to be accessed from all systems that have an internet connection.

                       4.         Rights in relation to Intellectual Property and Content

                       4.1       Intellectual Property

(a)        The Subscriber does not obtain any express or implied Intellectual Property rights, in the Platform and the Content beyond the right to use it for the Term as described in this Agreement; and

(b)        The Course provider retains ownership of the Intellectual Property in the Course on the Platform and has provided an Us with an irrevocable licence to sublicence for Subscribers use.

                       4.2       Warranties regarding Courses

(a)        We warrant:

(i)          that We own or are authorised to allow Subscribers to view all Courses uploaded to the Platform and that by uploading them and allowing Subscribers to access them during the Term that they will not be breach any third party’s Intellectual Property rights;

(ii)         that where Courses are labelled as being CPD Compliant they will satisfy the respective CPD Requirements as mandated by AHPRA as shown at: https://www.ahpra.gov.au/Registration/Continuing-Professional-Development.aspx

(iii)        that any Courses will be fit for the purpose it is provided and they will not be defamatory, libellous, scandalous or otherwise offensive to any reasonable person.

                                       4.3       Warranties in relation to the Platform

(a)        We warrant that the Platform will be free of defects during the Term and able to be used as anticipated.

• You expressly acknowledge and agree that, to the maximum extent permitted by law subject to the Our compliance with the obligations contained in the Competition and Consumer Act 2010(Cth)(ACL) its officers, employees, agents, expressly disclaim all warranties of any kind, whether express or implied, except the warranties that the Application are provided with clear title, are of acceptable quality, are fit for the particular purpose for which they were supplied and that they comply with their description (Non-Excludable Provisions);

• We make no warranty that:

  • the Platform will meet Your exact requirements;

  • the Courses will enable you to independently meet your annual CPD AHPRA Mandated CPD requirements; and

  • the performance of the Platform will meet your expectations.

                                     4.4       Subscriber’s warranties

(a)        The Subscriber warrants that:

• the Subscription to the Platform has been obtained at the Subscriber’s own discretion and risk;
• it will use the Platform strictly as required by any guidelines or recommendations provided by Us; and
• it has made its own investigations into the suitability of the Platform and they are not relying on any representation that We have not expressly made;

(b)        no advice or information, whether oral or written, obtained from Us in relation to the Subscribers compliance (or non-compliance) with AHPRA mandated CPD Requirements creates any warranty in relation to such compliance not expressly stated herein.

                                      5.         Limitation of liability

(a)        Subject to any claims made because of a breach of a Non-Excludable Provision available under the Australian Consumer Law, We are not liable for any loss or damage, including, but not limited to, direct, Consequential Losses, or personal injury or death, however suffered or sustained in connection with:

(i)          any inaccurate or incorrect information contained in the Courses that are made available on the Platform;

(ii)         the Subscribers use of the Platform;  

(iii)        any failure or delay including, but not limited to, the use or inability to access the Courses;  and

(iv)       any interference with or damage to Subscribers computer systems which occurs in connection with use of the Platform.

                                              5.2       Agreed liability

(a)        Nothing in this Agreement attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law.  

(b)        In Australia, Our Platform comes with guarantees which cannot be excluded under the Australian Consumer Law.  Subscribers are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.  You are also entitled to have the Courses repaired or replaced if the Courses fail to be of acceptable quality and the failure does not amount to a major failure;

(c)         For claims that cannot be excluded or restricted under Australian Consumer Law, the liability of the Company for such a claim will (at Our option and to the extent permitted by law) be limited to:

(i)          in the case of access to the Platform by the Subscriber during the Term:

1. replacement of the access to equivalent Courses or Subscription to an equivalent service of the same Term;
2. the cost of a replacement Subscription;

• the amount paid for the Subscription with Us; or

1. whichever is the greater.

(ii)         Nothing in this Agreement attempts to limit or exclude Our liability in compliance with section 64 of Schedule 2 of the Australian Consumer Law.

                       6.         Indemnity

The Subscriber indemnifies, and must keep indemnified, SWAunz its employees officers and agents, against any action, liability, claim, loss, damage, proceeding, expense (including legal costs) suffered or incurred, arising from or in connection with, either directly or indirectly the Subscriber’s breach of any of its obligations contained in this Agreement, including but limited to the making of a warranty that is inaccurate or incomplete.

                       7.         General provisions

(a)        Assignment – We may assign our rights and obligations under this Agreement by notifying the Subscriber of the terms of such an assignment.  The rights granted to the Subscriber are personal and may not be assigned;

(b)        Counterparts - This Agreement may be executed by the Parties in any number of identical counterparts.  Each counterpart is deemed to be validly executed if it is signed by a Party and sent by electronic mail to the other Party.  It comes into effect when all identical counterparts have been validly executed.  For executing this Agreement or any document required by it, the Parties agree that any signature is valid, and the document is validly executed if it is produced by an electronic communication as provided by the Electronic Transactions Act 2001 (Qld);

(c)         Entire agreement - This document contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein;

(d)        Further assurances - Each Party must do anything (including execute any document) and must ensure that its personnel do anything (including execute any document), the other Party may reasonably require to give full effect to this Agreement;

(e)        Governing law and jurisdiction - This Agreement is governed by the laws of Queensland, Australia and each Party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia; 

(f)          Severance - If anything in this Agreement is unenforceable, illegal, or void then it is severed, and the rest of this Agreement remains in full force and effect;

(g)        Survival - Any clause which is expressed to survive, or which by its nature is intended to survive termination of this Agreement, survives termination;

(h)        Variation - An amendment or variation to this Agreement is not effective unless it is in writing and signed by the Parties;

(i)          Waiver - A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.  A waiver is not effective unless it is in writing and signed by the Party giving it; and