MODE by Argon & Co Terms and Conditions
1. GENERAL
1.1 The App is owned and operated by Argon & Co Australia Pty Ltd ACN 614 494 450 ('Argon', 'We', 'Us' or 'Our') and is offered to the user ('User', 'You' or 'Your') in accordance with the Service Agreement.
1.2 We are responsible for the Service Offer in accordance with the Service Agreement and provide the App to enable the Service Offer.
1.3 Please read these Terms and Conditions carefully and understand they apply to all transactions via the App between Argon and the User.
1.4 These Terms and Conditions explain Your rights and obligations and include terms that may limit or exclude Your rights and govern the jurisdiction for any disputes.
1.5 You acknowledge and agree to review these Terms and Conditions prior to using the App and Service Offer and entering into the Service Agreement.
1.6 To the extent that anything in or associated with the App is in conflict or inconsistent with these Terms and Conditions, these Terms and Conditions will prevail.
2. DEFINITIONS
In these Terms and Conditions, unless the context otherwise requires:
2.1 'App' means the Argon MODE app designed for supporting employee training on manufacturing sites.
2.2 'ACL' means the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth).
2.3 'Business Day' means a day on which banks are open for general banking in New South Wales, Australia excluding Saturdays, Sundays, public holidays or bank holidays;
2.4 'Confidential Information' means all personal and corporate information the User acquires from Argon in relation to the Service Offer. Information already in the public domain or within the User's knowledge is not confidential under these Terms and Conditions;
2.5 'Intellectual Property Rights' means all intellectual, proprietary, and industrial property rights existing anywhere in the world, including copyright, trade marks, processes, know-how, patents, designs, inventions and trade, business, company or domain names, whether or not registered, and all rights to apply to register, revive or extend such rights;
2.6 'Liability' means any tangible or intangible: loss; damage; liability whether actual or prospective; cost or expense of any description, including legal costs incurred by You or any third-parties arising from any action, inaction, claim, demand, suit or legal action, however construed, expressly, including contract, tort, bailment, personal injury, death or negligence; loss of goodwill; business interruption; or for any direct, indirect, incidental, special, consequential, exemplary or punitive loss or damage arising out of or related to the Service Offer, however it may arise;
2.7 'Journey' means a configured sequence of training areas;
2.8 'Module' means a training area combined with a specific level (e.g., Quality Beginner);
2.9 'Privacy Policy' means Our privacy policy only for the App;
2.10 'Service Agreement' means the agreement entered into between Argon and the User incorporating these Terms and Conditions, Privacy Policy and any other terms and conditions associated with the Service Offer and/or the App;
2.11 'Service Fees' means the fees Argon charges the User in relation to the Service Offer, as detailed on the App;
2.12 'Service Offer' means the User's request for services through the App, being a legally binding offer and acceptance to form the Service Agreement; and
2.13 'Terms and Conditions' means these terms and conditions, as they may be varied by Argon from time to time.
3. INTERPRETATION
In these Terms and Conditions, unless the context otherwise requires:
3.1 References to legislation or to provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
3.2 These Terms and Conditions must not be interpreted adversely to a party only because that party was responsible for preparing it;
3.3 Headings are for convenience only and do not affect interpretation;
3.4 Words denoting the singular include the plural, and vice versa;
3.5 References to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
3.6 References to any gender include all genders;
3.7 Grammatical forms of defined words or phrases have corresponding meanings;
3.8 The words 'including' or 'includes' are not words of limitation;
3.9 References to a 'party' or 'parties' is to a party or parties to these Terms and Conditions and are intended to bind their executors, administrators and permitted transferees;
3.10 References to documents or agreements also mean those documents or agreements as changed, novated or replaced;
3.11 References to a numbered clause, paragraph, item are references to the relevant clause, paragraph, item under these Terms and Conditions;
3.12 References to an amount of money, including 'dollars' or '$' are references to the amount in the lawful currency of the Commonwealth of Australia;
3.13 If the day on or by which anything is to be done is not a Business Day, then it must be done by the next Business Day;
3.14 References to a 'day' or a 'month' are references to a calendar day or to a calendar month, as applicable;
3.15 Parties must perform their obligations on the dates and times fixed by reference to Sydney, New South Wales, Australia; and
3.16 Obligations under these Terms and Conditions affecting more than one party, bind them jointly and each of them severally.
4. AGREEMENT BETWEEN ARGON AND THE USER
4.1 By registering as a User and selecting (whether by clicking or otherwise) the 'Accept' or 'Agree' box or button or any other tick-box, You enter into a legally binding agreement with Us, being the Service Agreement. You expressly warrant and represent You are 18 years of age or over and have full legal capacity to enter into the Service Agreement. If you are not 18 years of age or over, You expressly warrant and represent that You have obtained the consent of your parents or guardians to enter into the Service Agreement.
4.2 By using the App and Service Offer and entering into the Service Agreement, You expressly indicate You have read, understood and accept these Terms and Conditions and You acknowledge and agree to be bound by them.
4.3 Furthermore, You acknowledge and agree that the App is intended for use by employees of companies that have set up that App in their backend systems and that by using the App, you represent and warrant that you have the requisite authorities and permissions to use the App.
5. USE OF THE APP
5.1 You warrant You will only use the App and any of the services, resources, benefits, features, functions, technologies, content, information and other material offered on the App:
5.1.1 For the Service Offer;
5.1.2 For lawful purposes and in accordance with all applicable local, state, national and international laws, rules and regulations;
5.1.3 In a way that does not damage, incapacitate, circumvent security, place unreasonable burden, alter the content or otherwise disrupt the operation or impair the functionality of the App, including uploading any data, scripts or other software. You also acknowledge and agree not to hack or reverse-engineer the function of the App; or
5.1.4 In a manner where You take the necessary precautions to ensure the process You use to access the App does not expose You to vulnerabilities, viruses, defects or other harmful components that may damage Your own computer system.
5.2 You warrant not to use the App or any of the services, resources, benefits, features, functions, technologies, content, information and other material offered on the App to:
5.2.1 Scrape, index, reproduce, redistribute or republish any part of the App;
5.2.2 Access, scrape or archive content such as scripting software, using automated means;
5.2.3 Use, create or distribute any device or software that interacts with the App;
5.2.4 Manipulate, alter or circumvent any fees listed on the App;
5.2.5 Interfere with any other party's use of the App; or
5.2.6 Change or manipulate another User's account or information.
6. PURPOSE OF THE APP
6.1 The App is designed to help employees in manufacturing sites up-skill in various areas, such as quality practices.
6.2 Journeys are divided into three levels:
6.2.1 Beginner (learning training);
6.2.2 Leader (leading the training); and
6.2.3 Expert (coaching others).
6.3 Journeys consist of Modules that may need to be completed on a machine or line.
6.4 Machines and lines also have performance-based Journeys with levels: base condition, good condition, and world-class condition.
6.5 Managers can calibrate machines or lines to advance their performance levels.
7. AVAILABILITY OF THE APP
7.1 It is possible that at times the App may be unavailable, including to permit maintenance or other development activity to take place. We give no guarantee in relation to availability of the App.
7.2 We reserve the right to terminate, alter, amend, modify or otherwise update the App in Our sole and absolute discretion at any time, without notice to You.
8. USER ACCOUNT
8.1 When You create a User account on the App, or as part of Your continued use of the App, You must provide Us with accurate, up to date, valid and complete information as required by Us. If You provide any incorrect, invalid or false information You will be in breach of the Service Agreement.
8.2 You must notify Us of any changes to Your User account and contact information within a timely manner.
8.3 Subject to these Terms and Conditions, we grant You a non-exclusive, non-transferable licence to use the App.
8.4 You must not use another User's account.
8.5 We will process Your personal information in accordance with Our Privacy Policy.
8.6 You warrant and represent:
8.6.1 You will not use the Service Offer or Your User Account in any way that is unlawful or likely to be unlawful;
8.6.2 You are solely responsible for any information You submit to Us via Your User account;
8.6.3 You are solely responsible for the use or misuse of Your account by any other party;
8.6.4 To maintain the security and integrity of Your User account login credentials, password and details relating to Your unique user identity question; and
8.6.5 If You reasonably suspect the security or integrity of Your User account has been compromised You will notify us immediately.
8.7 We reserve the right to close, limit access or suspend Your User account at any time for any reason, including non-payment, default and/or activities which breach the Service Agreement or Our Privacy Policy.
9. ACL AND CONSUMER GUARANTEES
9.1 We acknowledge that the ACL and similar consumer protection laws may confer certain rights and remedies to You relating to Our supply of services, which cannot be excluded, restricted or modified.
9.2 If You are a consumer under the ACL, We provide all of the consumer guarantees contained therein, to the extent to which they apply to the Service Agreement. Where there is a breach of any of the applicable consumer guarantees contained in the ACL, then to the fullest extent permitted by law Our Liability to You is limited to supplying the services to You again, or, at Our option, paying You the cost of having the services supplied to You again.
10. SERVICE FEES, BILLING AND PAYMENT
10.1 By using the Service Offer, You acknowledge and agree to the Service Fees and our billing and payment terms.
10.2 We reserve the right in our sole and absolute discretion to:
10.2.1 Vary Services Fees and payment terms for existing services; and
10.2.2 Add Service Fees and payment terms for new services.
10.3 If You do not agree to the varied Service Fees, then You may terminate the Service Agreement in accordance with these Terms and Conditions.
10.4 If we do not receive payment of Service Fees and any other amounts payable by You, by the due date, or payment is subject to chargeback, We may without prejudice to any other right or remedy:
10.4.1 Charge 10% interest per annum calculated daily on the outstanding amount;
10.4.2 Charge a late payment follow up fee per follow up phone call, email or letter sent in the process of collecting the outstanding debt; and/or
10.4.3 Collect any charges from You for any bank fees, transaction fees and any other costs, disbursements and expenses incurred by Us.
11. TERMINATION AND USER ACCOUNT CANCELLATION
11.1 You may terminate the Service Agreement at any time by logging into Your User account and requesting its deletion, and by paying any outstanding Service Fees and other amounts due in accordance with these Terms and Conditions.
11.2 We may terminate the Service Agreement and close Your User account with immediate effect, by notice to You, for any reason, including failure to pay any amount due, including any interest accrued by the date due; default; or breach of the Service Agreement.
12. LIMITATION OF LIABILITY FOR THE APP
12.1 Your use of the App is at Your own risk.
12.2 All services, resources, benefits, features, functions, technologies, content, information and other material offered on the App are provided on an 'as is' basis without any warranties or conditions of any kind, whether express or implied.
12.3 Generally, information sent or received over the Internet is unsecure. Although We attempt to maintain appropriate safety measures in respect of the App, We do not make any warranties or representations concerning security of any communication to or from the App.
12.4 You assume full responsibility for any defects in Your device, data, software, equipment or network.
12.5 We are not responsible for any defects, delays or disruptions to the App as a result of any impact, interruption, action or inaction of any third-parties or for any events beyond Our control or that cannot be anticipated.
12.6 To the fullest extent permitted by law, You hold Us harmless from and agree We are not responsible to You or any third-parties for Liability arising from or connected with:
12.6.1 The use, performance or reliability of the App, including data loss or corruption;
12.6.2 Unauthorised access to the App or to Your personal or other information;
12.6.3 Alteration of any transmission of data and any other matter related to the App, its content or any external links to the App;
12.6.4 Any alterations, amendments, modifications or suspension of the App or its content;
12.6.5 Changes or manipulation to Your User account or information by any third-parties; and
12.6.6 Actions of any third-parties using Your identification details or User account login credentials, whether it is with or without Your knowledge or authorisation.
13. INDEMNITY
13.1 To the fullest extent permitted by law, You indemnify Us from Liability as a result of a breach of the Service Agreement, incurred directly or indirectly by You or any third-parties.
14. CONFIDENTIALITY
14.1 You must treat Confidential Information subject to a duty of confidence and must only use it for the purpose of the Service Offer.
14.2 You agree to only disclose Confidential Information on a need-to-know basis for the purpose of the Service Offer, or as required by law.
14.3 You must advise each person to whom You disclose Confidential Information that You are subject to a duty of confidence, and that the Confidential Information is not to be used for any purpose other than the Service Offer.
14.4 You agree to take at Your sole expense, whatever steps We may consider necessary to enforce the duty of confidence against any person to whom You have disclosed Confidential Information and who is in breach of that duty.
14.5 On request, You must provide Us with a list of recipients, including their contact details, to whom You have disclosed Confidential Information.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 We own or licence all Intellectual Property Rights in the App and Service Offer, unless otherwise indicated. We reserve all rights in relation to Our Intellectual Property Rights.
15.2 Use of the App and Service Offer and entering into the Service Agreement does not transfer or assign any Intellectual Property Rights to the User under the Service Agreement. We retain ownership of all Intellectual Property Rights in the App, including any alterations or enhancements to the App.
15.3 Except as permitted by these Terms and Conditions, any use of our Intellectual Property Rights, including to create derivative works, is strictly prohibited without our prior written consent.
15.4 The names, logos or badges of any other organisation and/or their associated products or services contained on the App may be the Intellectual Property Rights of their respective owners and are used under licence with their consent.
15.5 Except as permitted by law or under the Service Agreement, You must not use, replicate, reproduce, reverse-engineer, publish, licence, sub-licence, transfer licence, convey, distribute, transmit, transfer, display, perform, integrate into another program or system, create derivative works from, decompile, alter, modify or sell any parts of the App or any services, resources, benefits, features, functions, technologies, content, information and other material offered on the App without our prior written consent.
15.6 You may have the opportunity to submit content, such as comments, feedback, or other materials ('User-Generated Content'). By submitting User-Generated Content, you grant Argon a non-exclusive, royalty-free, perpetual, and worldwide license to use, display, and distribute such content.
16. DISPUTE RESOLUTION
16.1 Before court or arbitration proceedings may be commenced, other than for urgent interlocutory relief, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with the Service Agreement, including any dispute as to the validity, breach or termination of the Service Agreement, or as to any claim in tort, in equity or pursuant to any statute.
16.2 Notice of the dispute must be made in writing by the party claiming that a dispute has arisen to the other party under the Service Agreement, specifying the nature of the dispute, the desired outcome and the action believed will settle the dispute.
16.3 Upon receiving the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
16.4 If within 10 Business Days of receiving the notice of dispute, the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties will refer the dispute to the Resolution Institute for facilitation of a mediation in accordance with the Resolution Institute's Mediation Rules.
16.5 The parties must cooperate with the Resolution Institute as facilitator.
16.6 If within 10 Business Days after referral of the dispute to the Resolution Institute the parties have not agreed upon the mediator or other relevant particular, the mediator and any other relevant particular will be determined in accordance with the Resolution Institute's Facilitation Rules.
17. PRIVACY POLICY
17.1 We respect Your privacy and are committed to protecting Your personal information.
17.2 These Terms and Conditions should be read in conjunction with Our Privacy Policy.
18. FORCE MAJEURE
18.1 Argon shall not be liable for any failure to perform its obligations under the Service Agreement if such failure results from a Force Majeure Event. For the purposes of this Agreement, a “Force Majeure Event” shall include but not be limited to acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labour or materials.
18.2 Upon the occurrence of any Force Majeure Event, Argon shall notify the User of such event and its expected duration and shall use diligent efforts to resume performance of its obligations as soon as possible.
18.3 Notwithstanding the foregoing, if a Force Majeure Event prevents Argon from performing its obligations under this Service Agreement for a continuous period of more than thirty (30) days, Argon may terminate this Service Agreement immediately upon notice to the User. The User shall not be entitled to any compensation or damages for such termination under this clause.
18.4 It is expressly understood and agreed that Argon's obligation to provide the Service Offer, as outlined in this Service Agreement, shall be suspended for the duration of any delay caused by a Force Majeure Event. Argon shall not be deemed to be in breach of this Service Agreement, nor liable for any delay in performance or failure to perform its obligations due to such Force Majeure Event.
19. ENTIRE AGREEMENT
19.1 The Service Agreement constitutes the entire agreement between Argon and the User in relation to Your use of the App and the Service Offer, and supersedes any prior understanding, arrangement, representation or agreements between Argon and the User as to the subject matter contained in the Service Agreement.
20. VARIATIONS TO THE SERVICE OFFER
20.1 Variations to the Service Offer can be made by either Argon or the User. Any variations are not binding or effective unless they are mutually agreed through the App.
21. SURVIVAL AND MERGER
21.1 No term of the Service Agreement merges on completion of any transaction contemplated by the Service Agreement.
21.2 Clauses headed: Service Fees, Billing and Payment; Termination and User Account Cancellation; Limitation of Liability for the App; Indemnity; Confidentiality; Intellectual Property Rights; Dispute Resolution; Governing Law and Legal Costs survive termination or expiry of the Service Agreement, together with any other term which by its nature is intended to do so.
22. SEVERABILITY
22.1 If any of the terms of the Service Agreement are deemed unenforceable, illegal or void, then those parts may be severed, and the other parts of the Service Agreement remain unaffected and continue in full force and effect.
23. GOVERNING LAW
23.1 The Service Agreement and any obligations arising out of or in relation to these Terms and Conditions are governed by the laws of New South Wales, Australia.
23.2 You acknowledge and agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any claim or dispute which may arise out of or in relation to the Service Agreement.
24. LEGAL COSTS
24.1 We may recover all solicitor/client legal costs and expenses incurred by Us in enforcing the Service Agreement for any breach by You, whether actual or apparent.
25. UPDATES
25.1 We reserve the right to alter, amend, modify or otherwise update the Service Agreement and the App in Our sole and absolute discretion, from time to time, without notice to You.
25.2 Any new services, resources, benefits, features, functions, technologies, content, information and other material that may be added to the Service Offer and the App from time to time will be subject to the Service Agreement, unless stated otherwise.
25.3 You should check the App from time to time to make sure You are aware of any updates.
25.4 By continuing to use the Service Offer and the App after any updates, You agree that You have read, understood and accept to be bound by the Service Agreement, as altered, amended, modified or otherwise updated.