Terms & Conditions
TuteSmart - Agreement
Your use of the Service is governed by this Agreement. See clause 19 for definitions of the capitalised terms used in this Agreement.
1. Membership and information
Use of the Service is conditional upon the Student obtaining and maintaining Membership.
You agree to provide accurate and complete information and to keep this information updated when interacting with us. You declare that the information provided to us for the purposes of enrolment and seeking and continuing Membership will be complete and accurate.
2. Classes and subjects
Students may request to be enrolled in particular classes upon application for Membership and subsequently. We do not guarantee that we will be able to accommodate any such requests and availability for any given class/ subject is subject to confirmation from us. Further, and except as otherwise permitted under this Agreement, should a Student wish to cancel their enrolment in any particular class, they must obtain our consent to doing so. We may withhold such consent at our discretion.
Entitlement to Membership and other Services is conditional on us receiving the applicable Membership sign-up fee and any other ongoing Fees. The applicable Fees are indicated and updated from time to time on our Website. Except as set out in this Agreement, Fees are payable on the basis that the Student is enrolled for and required to pay in respect of the duration of the academic year (February to November in each calendar year) but we allow the payment to be made in instalments in advance on a fortnightly basis.
Fees are charged and payable in Australian dollars (AUD), Fees are exclusive of and do not include any Goods and Services Tax ("GST") that may be payable in relation to the provision of the Service unless otherwise stated and in the event that GST is payable you must pay to us an additional amount equal to the amount of any GST payable by the supplier of the Services.
Unless we agree otherwise in writing, Fees do not include charges relating to the supply of any printed or other materials or optional additional services (including the conduct of intensive or extra classes, private tutoring, exam revision and other services designated as excluded on our Website), for which additional charges may apply as notified from time to time.
From time to time we may offer trial Membership (for example, 14 days' trial or a day pass) at no cost. Trial Memberships will not necessarily include all features of the full corresponding Memberships. Where you undertake a trial Membership, you may be required to provide valid credit card details to us. You agree that unless you notify us in writing at the end of that 14 day period that you wish not to proceed with a full, paid Membership, we shall assume that you wish to proceed with a Membership and you agree that may deduct the corresponding fees for the Membership type, using those credit card details.
You warrant that there will be sufficient funds or credit facilities to cover the order amount. We reserve the right to obtain validation of your payment details before granting Membership or use of the Service. If we have attempted to charge your card three times and there were insufficient funds you may incur an administration fee of $50 to reinstate your account.
5. Special Offers and Referrals
From time to time we may provide special promotional offers. Each such offer will have and be subject to its own terms and conditions, but if you sign-up to a special promotion you also agree to be bound by this Agreement.
From time to time we may also provide incentive schemes designed to reward you for introducing or referring others who take up Membership. Where you have referred such Students to us by providing their details to us, we may provide you with rewards such as vouchers or other benefits subject to that Student obtaining a Membership (beyond any trial period).
6. Cancellation by Student
You can cancel your membership by giving us two (2) weeks notice via your Tutesmart portal or sending us an email.
If you have paid upfront for the Services, on your request we shall issue a refund of any unused Membership component, less the amount of your Membership fees for the two (2) weeks notice period, less an amount representing the discount that you obtained on Membership fees by paying upfront (at the time of writing, ten (10) per cent of the Membership fee discount applies).
If you are paying on a fortnightly basis for your Membership, your Membership will be cancelled after two (2) weeks of giving us notice and there will be no other ongoing fees.
7. Conduct and behaviour
In the course of using the Service Students must not:
- do anything that is disruptive or damaging to others. This includes refusing requests that mobile phones and other similar devices be turned off or kept on silent mode during classes;
- say or represent anything that is defamatory of another student or any other person or do or say anything that is racist, homophobic, misogynistic, abusive, hateful, threatening, hostile, intimidating, bullying, harassing or constitutes an invasion of privacy;
- incite hatred or discrimination against any person or group of persons;
- engage in conduct that is misleading, false, deceptive, insulting, derogatory or ;
- infringe any third party's intellectual property rights (including copyright) or breach confidentiality;
- engage in activity or otherwise be involved in pornography, nudity or sexual acts;
- do or say anything that is vulgar, obscene or profane, is inflammatory or contains expletives;
- do anything that involves use of a photograph or other likeness, or personal or private information of another person without their consent;
- do or say anything that involves impersonating another person (especially but not only teaching staff or our staff) or misrepresents your relationship with any person;
- permit third parties who do not have Memberships to use the Service; or
- promote or encourage unlawful conduct or activities.
If we become aware of any Student conduct that breaches the terms of this Agreement, we may terminate this Agreement immediately, and/or terminate or suspend the Student’s Membership or other access to Services. In addition, we may also seek any other remedies available at law. We may also disclose a Student’s identity (and if appropriate your identity as the Student’s parent or guardian) and related information in the event that we receive a complaint (for example, from another Student or their parent/guardian), if legal action is threatened or commenced against us and/ or in respect of the Student’s conduct and activity. We have the right to escort and remove the student from the premises for inappropriate behaviour.
8. Intellectual Property
Students may access and print materials on our Website during the term of their Membership.
Copyright in materials provided through the Service is either owned by us or licensed (whether explicitly or implicitly) to us.
Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation throughout the world, and except as expressly authorised under such legislation by this Agreement, with our prior written permission or where you are the owner of copyright in the materials in question, you may not in any form or by any means reproduce, copy, adapt, translate, store, distribute, re-distribute, purport to sub-license, on-sell, print, display in public, perform, communicate to the public or create derivative works from the materials we provide or make available in the course of providing the Service, or any substantial part thereof. Such materials are licensed to you/the Student for personal, private, non-commercial use only.
The brands "ATAR NOTES" "EdUnlimited" and "TUTESMART", including any logo version of that trade mark, are our trade marks and may not be used by you without our prior written consent.
9. Care and discipline
We will endeavour to provide reasonable care, but you agree and acknowledge that to the extent permissible at law we shall not be liable for any damage, accident, injury, loss (including loss of property), expense or liability that may arise as a result of the provision of the Service.
We reserve the right to undertake or administer any lawful and reasonably necessary disciplinary action in relation to the Student, including such action as may be necessary to prevent disruption to other students or staff.
If you disclose to us or we find out certain information about you that we believe could be harmful to you or to others, we may disclose this information to the relevant authorities, including your parents, your school, a health care professional or anyone else we deem necessary that will assist us with dealing with the situation.
We disclaim any warranty that any information, advice and material obtained in the course of providing the Service will be accurate, complete, reliable, current, useful or error-free. To the extent permissible at law, the Service is provided on an "as is" and "as available" basis, without warranties of any kind other than those prescribed under the Australian Consumer Law or other applicable law.
We do not exercise any control over all of the content of the Service. To the extent permissible at law, opinions, advice, representations and other information or content expressed or made available in the course of providing the Service, are provided by their respective authors/ makers and not Tutesmart Pty Ltd, its staff, or its related companies.
We do not make any representations or warranties that the Website, and/or Student access to the Service will be uninterrupted or always available. We do not guarantee that any given tutorial or other planned activity will always be available or performed as scheduled.
We do not provide, nor do we accept any responsibility or liability for any ancillary costs associated with their use of the Service (such as internet access).
You accept that information or advice found or made available through the Service is general information, is not in the nature of advice and is not guaranteed to be error-free. Independent enquiries should be made before relying on anything said or done in the course of the provision of the Service.
The Service is not intended to replace regular class attendance or each Student’s own taking or generating of notes. The Service is intended to be used in conjunction with and not as a substitute for a Student’s own study notes and directions from their regular school teachers. The Student is responsible for maintaining classroom attendance and good study habits and following the necessary syllabus.
We do not represent or warrant that using the Service will lead to any particular study outcome or academic result and disclaim any warranty that the Service can be relied upon.
Where legislation (including the Australian Consumer Law) implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability and the remedies available to you will be limited to the extent permissible at law.
To the extent permissible at law, in no circumstance will we be liable to you for any indirect, incidental, special and/or consequential loss or damage (including loss of profits, revenue, production, goodwill, data or opportunity including educational opportunity) of any nature arising through or as a result of your use of the Service or materials purchased or obtained through it.
12. Breach of Agreement / Termination
Cancellation by the member is dealt with above.
A Membership / this Agreement may be terminated by us on written notice to you if there is a breach of this Agreement and we have provided you with 7 days’ written notice to remedy that breach and you have not remedied the breach, or immediately if the breach is incapable of remedy.
A Membership / this Agreement may be terminated by us in the event of our insolvency or if an event beyond our control causes significant disruption to the business (for example, flood, fire, earthquake, pandemic, etc).
No refunds are available in the event of termination for your/ Student breach.
Those terms and conditions of this Agreement that are capable of surviving termination will survive any such termination.
Except as set out under this Agreement or where required at law, including under the Australian Consumer Law, all Fees are non-refundable. Without limitation, this includes where use of the Service is prevented by circumstances such as Student illness or any other factor affecting the Student's attendance or use of the Service, whether foreseen or unforeseen.
You agree to fully indemnify and hold us (and our directors, officers and employees) harmless against any expenses, costs, loss or damage (including consequential loss) that we may suffer or incur as a result of or in connection with your or the Student’s use of the Service and any breach by you or the Student of this Agreement.
15. Authority to enter into Agreement
You warrant that you have full authority and entitlement to enter into this Agreement as either a Student (of 18 years or over) or the legal parent or guardian of a Student to whom the Membership relates and/or for whom the classes and Services will be provided.
You personally guarantee the performance of all of the obligations of the Student under this Agreement. You agree and acknowledge that in the event that we suffer loss or damage as a result of a Student being a minor we reserve the right to take legal action and seek recompense from you as the Student's parent or legal guardian of that minor.
16. Waiver, Severance and Assignment
If we fail to take action with respect to any breach of this Agreement this does not waive our rights to take action with respect to subsequent or similar breaches.
If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed severed from the remainder of this Agreement and will not affect the validity of the remaining provisions.
In the event that we merge, sell or otherwise change control of our business or company, we reserve the right and you hereby consent to us transferring, assigning or sublicensing the rights to use any personal information that you have provided to us. You agree that we shall have the right to assign, transfer or novate the rights that we have under this Agreement. You may not assign your rights under this Agreement, and Membership and rights to attend classes are not transferrable.
17. Governing Law
This Agreement is governed by the laws in force in Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.
We reserve the right to amend this Agreement from time to time. Amendments will be effective immediately upon publication on our Website and will apply to all transactions occurring and agreements entered into following such publication. Your continued use of the Service following such notification will represent an agreement by you to be bound by this Agreement as amended.
In this Agreement:
- "Fees" means the fees applicable to the Student's use of the Service as set out in this agreement and detailed at the Website;
- “Membership” means membership entitling a Student to use the Service in accordance with this Agreement.. Where the context permits it, the term also means a trial or temporary membership;
- "Service" means the tuition and any other goods/ services we provide or make available through the Website and the portal made available through it, and, if applicable to the Student’s Membership, other related websites (including EdUnlimited (www.edunlimited.com) and Atar Notes (www.atarnotes.com)) as well as any related or additional services we offer and you agree to;
- "Student" means a person who uses the Service as a student and unless the context requires otherwise means the child (if under 18 years of age) in respect of whom you are the legal parent or guardian;
- "We", "us" and "our" are references to Tutesmart Pty Ltd ACN 608 028 717;
- "Website" means www.tutesmart.com ; and
- "You" means the person entering into this Agreement with us, either as a Student (if legally capable of doing so) and/or as a legal parent or guardian of a Student.