Terms and Conditions

Where the following words are not already defined in another part of this Agreement:

Commencement Date means the date of acceptance of this Agreement in accordance with clause 1 above.

Confidential Information means the content of this Agreement, any information of a party which is marked confidential and any information which is by its nature confidential.

Data means any information entered into and contained in the Platform from time to time, which may include your personal or private information.

Fees means the Fees published on the Platform, excluding any tax, merchant fee, or other associated costs.

Intellectual Property Rights means:

(a) all intellectual property rights at any time protected by statute or common law, including patents, copyright and any registered intellectual property rights, registered designs, trademarks, Source Code and goodwill; and

You must register for an account before you are able to access the Platform.

You are not authorised to create an account or use the Platform unless you are 18 years of age. By using our courses, you represent and warrant that you meet this requirement.

Fees will be charged up front on a per course basis. By purchasing a course from us you agree to pay the corresponding Fee. All fees must be paid up front prior to you being granted access to the relevant course material, unless otherwise agreed.

Myo Munchee may (but is not obliged to) offer for purchase a Subscription for a pre-determined Subscription Fee. The details of the Subscription, the Subscription Period and Subscription Fee along with any other terms and conditions not already set out in these terms will be set out within the Platform at the time of purchase. 

If you wish to accept a Subscription, You must do so via a separate clickthrough agreement to confirm your agreement.

Subscription Fees will be charged to you up front at the time of purchase. By purchasing the Subscription you agree to pay the Fee for the full term.

Subject to you complying with your obligations under this Agreement and in consideration of the payment of Subscription Fees by you, Myo Munchee will grant you access to the selected course materials and other resources forming part of your Subscription once the transaction is processed and payment is confirmed.

Once a Subscription is processed and payment confirmed, it cannot be terminated early by You and no refunds are available where you fail to access the material the subject of the Subscription.

Subscriptions will be renewed either on an annual basis, on the subscription expiry date or such other date as determined by Myo Munchee. To renew your Subscription, you must pay the Subscription Renewal Fee for the next Subscription Period.

If you do not pay the Subscription Renewal Fee as set out in the preceding paragraph prior to the expiry of the Subscription Period, your access to the Munchee U courses and resources forming part of your Subscription will be suspended. You may still access your account to make a “Pick and Pay” course purchase or to purchase a new Subscription.

You can elect to pay the course Fees or Subscription Fees by processing the payment by credit card, through a third-party merchant facility or a finance provider accepted by Myo Munchee.

You agree that Myo Munchee has no liability whatsoever for any error, omission, loss, or damage caused or contributed to by the third-party merchant or finance provider.

You agree that by using a third-party merchant facility or finance provider you are entering into a separate agreement with them and you are subject to their terms and conditions and are liable for their fees.

You must contact the third-party merchants or finance providers directly to obtain a copy of their terms and conditions or confirm the fees payable by you for electing to use their payment services.

If you fail to pay any amount owing under this Agreement, Myo Munchee is at liberty to suspend access to the Platform and/or any course material immediately until payment has been made in full or the Agreement has been terminated.

Myo Munchee is authorised to grant rights and access to the Platform as set out in this Agreement.

Myo Munchee grants you a non-exclusive and non-transferable right to use and access the Platform and all material within the Platform in accordance with the terms of this Agreement.

Subject to you complying with your obligations under this Agreement and in consideration of the payment of the Fees by you, Myo Munchee will allow you to logon to and use the Platform, as soon as it has been configured for your access.

All rights title and ownership in the Platform (including all Intellectual Property Rights contained within the Platform, but excluding the Data upload into the Platform by you or on your behalf) shall at all times vest with Myo Munchee (including without limitation any modifications or developments made to the Platform either by Myo Munchee (or anyone authorised by Myo Munchee) or by you with or without the consent of Myo Munchee).

Nothing in this Agreement grants you ownership of the Platform or any other rights in respect of the Platform other than those expressly granted in clause 7.

Risk of use, loss of or damage to the Platform will pass to you on the Commencement Date.

Except as expressly provided in this Agreement and to the extent permitted by law, liability for all representations and warranties, whether implied, express, or otherwise, are excluded.

Except as expressly warranted above, Myo Munchee does not warrant or make any representations:

1. that the Platform is of merchantable quality, suitable for your use, or is fit for any other purpose or use;
2. that operation of the Platform will be-uninterrupted or that the Platform is error-free;
3. regarding the results of any use of the whole or any part of the Platform; or
4. as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the Platform.

You are responsible for determining that the Platform is suitable for your own use or purpose or educational needs.

You assume all risk for any loss or damage resulting directly or indirectly from your use of or inability to use the Platform.

To the extent permitted by law Myo Munchee will not be liable to you in respect of any consequential, indirect, exemplary or punitive damage (including, but not limited to, loss of actual or anticipated profits or revenues, loss by reason of shutdown or non-operation, increased cost of borrowing, capital or financing, or loss of use or productivity, etc.) whether caused by or in relation to breach of contract, warranty, tort, product liability, contribution or strict liability, whether arising under this Agreement, at law or in equity.

The above clause does not apply to Myo Munchee’s liability in respect of:

1. fraud or wilful misconduct; or
2. liability for infringement of Intellectual Property Rights.

To the extent permitted by law, Myo Munchee’s aggregate liability for any claims made under or in connection with this Agreement will be limited to the Fees paid by you to Myo Munchee for access to the Platform.

Where any statute or law implies warranties or conditions into this Agreement, which cannot be lawfully modified or excluded under this Agreement (Non-excludable Condition) then this Agreement will be read subject to such Non-excludable Condition. Where such statute or law permits, Myo Munchee limits its liability to you for breach of such Non-excludable Condition to re-supplying access to the Platform, paying for the re-supply, or to an amount equivalent to the Fees (at the option of Myo Munchee).

Each party (Indemnifier) indemnifies the other party against all liability, loss, cost or damage caused by any of the following:

1. breach by the Indemnifier of the Agreement;
2. (any claims arising out of or in any way related to an injury to or death of any person or loss of or damage to any tangible property arising out of or in any way relating to this Agreement and caused by the Indemnifier’s act or omissions; and
3. any claim by a third party arising out of or in any way related to the Indemnifier’s wilful, negligent, or unlawful act or omission,

provided however that the Indemnifier’s liability under this clause is reduced proportionately to the extent that any negligent act or omission of the other party contributed to the liability.

You acknowledge that the Data contains information which is protected under the Privacy Act 1988 (Cth) as amended from time to time (Privacy Act).

Myo Munchee agrees to protect and deal with such Data only in accordance with the Privacy Act and will otherwise treat any Data in its control in accordance with its privacy policy, which can be found at https://muncheeu.com/privacy.

Myo Munchee is not responsible or liable for unauthorised access to the Platform including, without limitation, the unauthorised use of the Platform or any Data by you or a third party.

Myo Munchee owns the Intellectual Property Rights in or holds an exclusive licence to deal in the Platform, including any developments or customisation of the Platform made at your specific request. Where it holds an exclusive licence, Myo Munchee also holds on trust for the owner of the Intellectual Property Rights in the Platform, any rights to enforce this Agreement for the protection of those Intellectual Property Rights.

In consideration for your compliance with this Agreement, Myo Munchee grants you access to and use of the Platform for the duration of this Agreement.

You agree:

1. not to decompile, copy, disassemble, reverse engineer or otherwise attempt to derive or use the Source Code from the Platform or any part of it;
2. not to copy or engage any third party for the purposes of copying the functional operation of the Platform, including without limitation the “look and feel” of the user interface, the logical sequence of operations and commands of the Platform and its on screen graphic style, colours, and content;
3. not to sell, rent, lease, licence, display, or otherwise transfer any part of the Platform to, or permit the use of any part of the Platform by, any third party;
4. to preserve the confidential nature of the Confidential Information (including Intellectual Property Rights contained within the Platform), and to use reasonable care to prevent the unauthorised use, copying, publication or dissemination of any part of the Platform and/or Myo Munchee’s Confidential Information;
5. not to alter, enhance, adapt, develop or modify any part of the Platform or attempt to do any of those things or procure a third party to do or attempt to do any of those things;
6. not to knowingly disclose or grant access to the Platform or any part of it to any third party who may, or has the capacity to contravene sub clauses (a) to (c) above; and
7. not to permit or allow any third party to do anything which, if committed by you, would be a breach of any one or more of the sub clauses (a) to (f) above.

This Agreement does not transfer to you any right, title or interest in the Platform, any customisation or development of the Platform, the Source Code, or any user manuals or collateral or supporting documentation.

Title to the Platform and any Intellectual Property Rights existing in the Platform (including any modifications, enhancements or developments made to the Platform), remains at all times vested in Myo Munchee.

A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

A party will not be in breach of this clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.

Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.

Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers, and accountants.

A Force Majeure event means anything outside reasonable control of a party, including but not limited to:

1. power, data or communication outages;
2. acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
3. a transportation embargo;
4. industrial action (including a picket); and
5. any legislation or regulation and any action or inaction of any government or government agency.

If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money, then:

1. as soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations, the date of commencement of non-performance and the means proposed to be adopted to remedy or abate; and
2. that party’s obligation to perform will be excused for the duration and to the extent of the delay arising directly out of the Force Majeure event of which notice is given under this clause.

In any dispute arising out of or in connection with this Agreement, both parties agree to first negotiate in good faith with the other party to resolve it.

If the dispute is not resolved by those negotiations within thirty (30) days, you agree that the matter may be referred to the Australian Commercial Dispute Centre Limited (ACDC) for resolution by mediation and if necessary, by arbitration in accordance with the Conciliation Rules of the ACDC.

All notices which are required to be given under this Agreement will be in writing and will be sent to the address of the recipient as may be set out in a proposal or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand, by pre-paid letter, facsimile or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or on transmission by the sender (if sent by facsimile) or upon receipt of delivery confirmation or “read receipt” by the sender (if sent by email).

Clauses 10, 13, 14, 15, 17, 20 and this clause will survive the termination or expiry of the other provisions of this Agreement.

This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia.

This Agreement overrides the provisions of any other documentation in relation to the Platform.

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of both parties.

You must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Myo Munchee.

Myo Munchee may assign any rights or benefits under this Agreement without your prior written consent. You must do all things and sign all documents to give effect to any assignment by Myo Munchee.

No forbearance, delay, or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

Should any part of this Agreement be or become invalid, that part will be severed from this Agreement. Such invalidity will not affect the validity of the remaining provisions of the Agreement.

If you have any questions, complaints or claims with respect to the Platform or this Agreement, please contact us at hello@myomunchee.com.