Terms and Conditions

Acceptance of the Terms

This Terms of Use Agreement (“Terms” or “Agreement”) is a contract between you (the “User”) and Accent Publishing Pty Ltd ACN 131 739 154 (“we”, “our” or “us”).

If you are an entity such as an educational institution or music school then the term User also includes your representatives, agents, contractors, affiliates, employees and students.

The Agreement governs the use of our Encore Music Wiz App (“the Application”) and access to our website, www.encoremusicwiz.com.au (the “Site”), collectively referred to in this document as “Services”.

Please read these Terms carefully. By using, browsing and/or downloading our Services, you confirm that you have read, understood and agree to be bound by the Terms and by our Privacy Policy, available at www.encoremusicwiz.com.au/privacy.

We reserve the right to review and change any of the Terms by updating this document on our Site or the Application at our sole discretion without giving prior notice. It is the User’s responsibility to check these Terms when they use the Services.

Account Creation

In order to use the Application you will be required to create a user account (“Account”) at www.encoremusicwiz.com.au/register As part of the registration process, you will be required to provide the following personal information:

1. your name;
2. email address;
3. password for your Account;
4. country;
5. postcode; and
6. phone number (teachers only)

You must be 15 years or older to register to use the Application, or must otherwise have the capacity to agree to these Terms. If you are under 15 years of age, your parent or guardian may need to register an account on your behalf in order to gain access to the Application.

You warrant that any information you give to Accent Publishing Pty Ltd in the course of creating an Account is, to the best of your knowledge, accurate, correct, and up to date. You also warrant that you are 15 years or older, or that you otherwise have the capacity to agree to the Terms.

Number of Devices

The number of devices on which a User may redeem a download code is limited to three (3). For clarity, this means that while the Application may be installed on multiple devices, a download code for a single book title may only be used on three (3) devices at any one time. Therefore, if a User wanted to download the same book (audio files) onto more than three (3) devices, one or more additional redemption cards would need to be purchased.

User Obligations

As a User you agree to the following:

1. you will use the Services only for purposes that are permitted by:
   1. these Terms; and
   2. the laws of Australia and the State of Queensland;
2. you are responsible for protecting the confidentiality of your password and email address. Any use of your Account by any other person, or third parties, is strictly prohibited. You agree to immediately notify Accent Publishing Pty Ltd of any unauthorised use of your password or email address or any breach of security of which you have become aware;
3. you are responsible for preventing any unauthorised access to, or use of, your Account. If we suspect that your Account has been accessed or used by any other person, we may immediately cancel your access to the Services, and cancel or suspend your Account;
4. 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 Accent Publishing Pty Ltd providing the Services; and
5. you will not use the Services for any illegal and/or unauthorised purpose.

Copyright and Intellectual Property

All copyright, trademarks and other intellectual property rights shall remain at all times vested in Accent Publishing Pty Ltd. Nothing in this Agreement will function to transfer any intellectual property rights to the User.

Accent Publishing Pty Ltd grants you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a User to:

1. use the Application pursuant to the Terms; and
2. copy and store the Application and the material contained in the Application in your device’s cache memory.

Accent Publishing Pty Ltd does not grant you any other rights whatsoever in relation to the Services. All other rights are expressly reserved by Accent Publishing Pty Ltd.

You may not, without the prior written permission of Accent Publishing Pty Ltd and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services for any purpose, unless otherwise provided by these Terms.

The Application contains proprietary software provided by a third party. In order to protect this material, and except as permitted by applicable legislation, you must not decompile, reverse engineer, disassemble or otherwise reduce the software to a human-perceivable form. You may not modify, rent, lease, loan, distribute or create derivative works based upon the software in whole or in part.

Privacy

Any personal information you provide is subject to our Privacy Policy, which is available through the Application and at www.encoremusicwiz.com.au/privacy.

General Disclaimer

To the extent permitted by law:

1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
2. Accent Publishing Pty Ltd will not be liable for any special, direct, indirect or consequential loss or damage, loss of profit 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. Everything on the Application and the Services is 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 Accent Publishing Pty Ltd make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Accent Publishing Pty Ltd) referred to on the Application. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

1. 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;
2. the accuracy, suitability or currency of any information on the Application, the Site or any of its Services related products; and
3. costs incurred as a result of you using the Services or any of the products of Accent Publishing Pty Ltd.

Nothing in these 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).

Limitation of Liability

Accent Publishing Pty Ltd’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 value of the Services, or the resupply of the Services to you.

Termination of Contract

The Terms will continue to apply until terminated by Accent Publishing Pty Ltd, which we may do at any time and without notice to you. The circumstances in which Accent Publishing Pty Ltd may terminate the Agreement include where:

1. you have breached any provision of the Terms or intend to breach any provision;
2. Accent Publishing Pty Ltd is required to do so by law;
3. the provision of the Services to you by Accent Publishing Pty Ltd is, in the opinion of Accent Publishing Pty Ltd, no longer commercially viable.

The payment of any refund is wholly at the discretion of Accent Publishing Pty Ltd.

Indemnity

You agree to indemnify Accent Publishing Pty Ltd, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

1. 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 your use of our Services;
2. any direct or indirect consequences of you accessing, using or transacting on the Application or attempts to do so; and/or
3. any breach of the Terms by you.

Dispute Resolution

Compulsory: 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).

Notice: A party to the Terms claiming a 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.

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

1. Within 21 days of notice endeavour in good faith to resolve the dispute expeditiously by negotiation or such other means upon which they may mutually agree;
2. If for any reason whatsoever, 21 days after the day of the notice, the dispute has not been resolved, the Parties can mutually agree to a further 21 day extension period otherwise must thereafter agree upon selection of a mediator.
3. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the 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;
4. The mediation will be held in Unit 2, 39 Elgin Street, Alderley, 4051, Queensland, Australia or at a suitable alternative at our discretion.

Confidential: 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” communications for the purpose of applicable laws of evidence.

Termination of Mediation: If four weeks 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.

Venue and Jurisdiction

In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue and jurisdiction for resolving any dispute shall be in the courts of Queensland, Australia.

Our Services may be accessed throughout Australia and overseas. We make no representation that our Services comply with the laws (including intellectual property laws) of any country outside Australia. If you access our Services from outside Australia, you do so at your own risk and are responsible for complying with the laws of the jurisdiction where you access our Services.

Governing Law

The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law, principles, notwithstanding mandatory rules.

Severance

If any provision of this Agreement is found to void, invalid, illegal or unenforceable by a court of competent jurisdiction, that provision will be read down as narrowly as necessary to allow it to be valid or enforceable.

Entire Agreement

This Agreement constitutes the entire agreement between Accent Publishing Pty Ltd and the User, and supersedes all prior communications, representations, agreements and understandings, oral and written, between the parties.

Contact

For any questions and notices, please contact us at:

Accent Publishing Pty Ltd

ACN: 131 739 154

Email: info@accentpublishing.com.au

Last Update: 31 January 2020