OB3
Terms of Use
Welcome to OB3,
a cloud platform that facilitates online learning. These Terms of Use form a
legal agreement (Terms) between you and OceanBrowser Limited that sets
out our, and your, rights and obligations in relation to the OB3 website and
platform.
Please read these Terms (which include
the Privacy Policy) carefully before accessing and using the Platform. By using
the Platform, you agree to follow and be bound by these Terms. If you do not
agree to all of these Terms, you must not use the Platform.
These Terms may be varied by us at any
time. Unless otherwise stated, amendments to these Terms will be effective upon
us: (a) updating
this Policy accessible at https://www.ob3.io/terms and providing you with a
notification message that will be displayed within the Platform when you login;
or (b) notifying you of the changes by email. You must ensure that you have read,
understood and agree to these Terms. You agree that your continued use of the Platform
represents your agreement to be bound by the most recent terms.
1.
Definitions
and Interpretation
1.1
In these Terms,
unless the context otherwise requires or is specified otherwise:
Access Details has the meaning given in clause 3.6(b);
Account means the online profile you have with
us that is accessible via the Platform;
Alumni means any Learner who has completed a
Course;
Course means any course made available on the
Platform to you and other Users;
Course Content means the content for any Course that
is made available, or created, on the Platform by the relevant Facilitators or
Providers, including course materials, modules, software, checklists, study
notes, videos, links to content available on other sites and audio recordings,
all as modified and amended from time to time by any of the Users;
Device means a computer or other
device that you own and/or control;
Facilitator means the teacher,
facilitator, lecturer or administrator appointed by a Provider to provide a
Course;
Intellectual Property
Rights means
all intellectual property
rights and includes any patents, registered designs, utility models, trade
marks (including logos and trade names), domain names, copyright, circuit
layouts, rights in computer software and databases, rights in inventions,
ideas, know-how and trade secrets, image and personality rights (including all
things recorded about that intellectual property), in each case whether
registered or unregistered (including applications for the grant of any of the
foregoing) and all rights or forms of protection having equivalent or similar
effect to any of the foregoing which may subsist anywhere in the world and all
rights to apply for any such rights;
Learner means a student or other person who
has been given access to the Platform to carry out the Course;
Platform or OB3 means the OB3 website
located at use.ob3.io, through which Users may access the OB3 learning
platform, including Course Content. It also applies to any services or
applications accessed on any sub-domain of the domain “ob3.io”;
Privacy Policy means our privacy policy located
at https://www.ob3.io/privacy;
Provider means an organisation or
education provider (if any) that provides the Course;
Subscription Fee means subscription fee (if
any) payable by Users for access and use of the Platform (where applicable), as
specified on the Platform or otherwise in writing by us from time to time;
Subscription Term means the term commencing on the date that
you agree to these Terms and ending on the date these Terms are terminated in
accordance with its provisions;
Third Party Providers has the meaning given in
clause 7.4 (d);
Updates has the meaning given in clause
4.1;
User
Content means
in relation to:
(a)
all Users, the User
Generated Content; and
(b)
Facilitators and
Providers, the Course Content;
User Generated Content means any content uploaded
to, or created generated or posted on, or shared via, the Platform by you or
any other User and includes (without limit) documents, folders, content contained
in file attachments, embedded media, audio and video content, learning
information and discussion posts;
Users means users that access and
use the Platform, including: (a) Learners, Facilitators, Providers and Alumni;
and (b) other individual and business users that access the Platform;
Virus means any thing or device
(including any software, code, file or program) which may: (a) prevent, impair
or otherwise adversely affect the operation of any computer software, hardware
or network, any telecommunications service, equipment or network or any other
service or device; (b) prevent, impair or otherwise adversely affect access to
or the operation of any program or data, including the reliability of any
program or data (whether by re-arranging, altering or erasing the program or
data in whole or part or otherwise); or (c) adversely affect the user
experience, including worms, trojan horses, viruses and other similar things or
devices;
we, us and our are a
reference to OceanBrowser Limited; and
you and your are a
reference to the entity that accesses and/or uses the Platform.
2.1
The Platform provides
a cloud learning platform that allows Users to connect with each other.
2.2
Before you are
given access to the Platform you will need to pay any relevant Subscription Fee
in full in the manner specified on the Platform except where your use of, and
access to, the Platform is, or will be, paid for by your organisation or other
third party, or as otherwise agreed in your agreement with us. Except to the
extent prohibited by law, you will not be entitled to a refund of the
Subscription Fee.
2.3
Please read the
Privacy Policy accessible at https://www.ob3.io/privacy which forms part of these Terms to
understand when and how your information may be shared with your organisation
or education provider, or any other users in the Platform.
3.
Access to the Platform
3.1
We grant you a
non-exclusive, non-transferable, revocable right to access and use the Platform
during the Subscription Term, all on the terms and conditions set out in these
Terms.
3.2
If you are an Alumni
User you will:
(a)
have a perpetual
right to access the Platform in accordance with clause 3.1 provided that you periodically
log-in to keep your account active. We may disable or remove dormant Alumni
accounts at our discretion. We may place restrictions on the Platform services
we provide to Alumni; and
(b)
be able to access your
personal Content that you have created and that is not located inside a Provider’s
Course.
3.3
If you are a Provider:
(a)
you may choose whether
or not you wish to provide Alumni with access to completed Course Content; and
(b)
if you cease to
use the Platform and remove your Course Content from the Platform, then the Course
Content will cease to be accessible by all Users including Alumni.
3.4
We may, at our sole
discretion, choose to change the Terms including the conditions under which we
provide Alumni access at any time.
3.5
We will use
reasonable endeavours to make the Platform available to you on and subject to these
Terms.
3.6
You:
(a) will be solely responsible for:
(i)
procuring
and maintaining your network connections and telecommunications links from the Device
you use to access the Platform; and
(ii) all problems, conditions,
delays, delivery failures and all other loss or damage arising from or relating
to your network connections or telecommunications links or caused by the
internet;
(b) will keep any logins, passwords and
registration codes (together, Access Details) that are required
for your access to your Account and/or use of any part of the Platform confidential
and ensure you are the only person to access and use the Platform through use
of the Access Details;
(c)
will only access
those parts of the Platform that you have been authorised. If you have access
to parts of the Platform that you do not think you should have access to please
immediately contact us;
(d)
will use all
reasonable endeavours to prevent any unauthorised access to, or use of, the Platform
and, in the event of any such unauthorised access or use, promptly notify us;
(f)
acknowledge and
agree that we may disable
your login Account or access to the Platform at any time if we suspect that the
Access Details have been provided to any third party or if we consider that you
are breaching these Terms, applicable law or that it is otherwise necessary for
the security and/or safety of the Platform or other Users;
(g) will ensure that all information that
you provide to us is true and correct and kept up to date for so long as you
continue to use the Platform;
(h) will abide by the safety information,
maintenance instructions or other relevant notices contained in the information
that is included with the Platform; and
(i)
will comply with
all applicable laws (including the Privacy Act 2020) and any third party policies
or terms you have agreed to (for example with the Provider of any Course you
are taking) with respect to your use of the Platform.
3.7
You will not:
(a) except as may be permitted
by any applicable law which is incapable of exclusion by agreement between you and
us:
(i)
and
except to the extent expressly permitted under these Terms, attempt to copy,
modify, duplicate, create derivative works from, frame, mirror, republish,
display, transmit, or distribute all or any portion of the Platform in any form
or media or by any means; or
(ii) attempt to decompile,
disassemble, reverse engineer or otherwise reduce to human-perceivable form all
or any part of the Platform;
(b) access the Platform in order to build
a product or service which is the same as or similar to the Platform or which
otherwise competes with the Platform;
(c) remove, disable, circumvent or attempt
to undermine the integrity of any security or technical measures, including any
digital rights management system or other content protection or features used
by us, that control access to:
(i)
the Platform;
or
(ii) Content which is shared
with you on the Platform and the associated access rights assigned to you for
access to such Content; or
(iii) our, or any third party’s,
systems, networks or resources used in the provision of the Platform; and
(d) access, store, distribute or transmit
any Viruses through the Platform, and we may, without liability to you, remove
or restrict access to content we believe may contain Viruses, restrict or disable
your access to the Platform if you are in breach of this clause.
4.
Changes
to the Platform
4.2
Although we use
reasonable endeavours to ensure that any Updates to the Platform do not cause
any problems in your use of the Platform, our liability to you to the extent
that problems arise from such Updates is limited in accordance with these Terms.
4.3
We may at any time
for security, technical, commercial or other reasons, discontinue or restrict
access to any part of the Platform, temporarily or permanently, and we will
provide reasonable notice to you. If we discontinue or restrict access to the
Platform we will provide you with guidance on how you can export or migrate
your Content out of the Platform.
5.
User
Content and Communications
5.1
As a User, you
have the ability to make available, or create, User Content on the Platform. It
is important that all User Content is posted with integrity and honesty.
5.2
You will not make
available, or create, on the Platform, or transmit to other Users, any User
Content (including links to other content), or otherwise engage in any activity
through the Platform, that:
(a) does not comply with your Provider’s
research integrity and ethics regulations, or rules for responsible conduct of
research;
(b) contains digital content (including
but not limited to photographs, videos, audio-recordings) of people if you do
not have their consent, or if your use of such digital content is not otherwise
covered by an ethical approval process of your Provider’s research integrity
and ethics regulations;
(c) breaches the Intellectual Property
Rights of any third party;
(d) uses another person’s personal
information other than for the specific purposes for which that person’s
personal information was provided to you;
(e) is intended to bully, harass, annoy,
threaten or intimidate any other User;
(f)
is objectionable
(including being false, misleading, defamatory, inaccurate, abusive, sexually-related, racially or
ethnically objectionable in nature,
or otherwise objectionable);
(g) breaches any applicable law; or
(h) contains any Viruses.
5.3
You
acknowledge and agree that:
(a)
we do
not control, and therefore are not responsible for, any communication, comment
or content shared between you and any other User that may have been initiated
as a result of use of the Platform; and
(b)
the
views expressed in User Content may not be our views. While we may monitor User
Content and exercise editorial control where possible, you acknowledge that you
use and rely on the User Content obtained through the Platform at your own
risk.
5.4
If you
wish to make a complaint about any User Content, Course Content, or any other
content on the Platform, you may do so by notifying us at privacy.officer@oceanbrowser.com. Your complaint must
include the URL of the document containing the objectionable content, your name
and email address, and the nature of your complaint. Where the content you are
complaining about occurs within content associated with or belonging to a Provider
we will notify them of the complaint, but we will attempt as far as is possible
to preserve your privacy. A complaint to us under this clause is sufficient
justification for us to use super-user access privileges to access and review
the content for purposes of evaluating the complaint and taking appropriate
action.
5.5
We may
at any time:
(a)
refuse
to host any User Content;
(b)
edit,
disable or restrict sharing, or remove User Content;
(c)
access
any User Content for the purpose of evaluating whether such content violates these
Terms. User Content will
only be accessed by authorised staff and access will be logged; or
(d)
disable embedding
or accessing User Content from certain domains (blacklisting).
that we in our absolute
discretion (acting reasonably) consider breaches these Terms, is likely to
result in a breach of these terms, or is otherwise inappropriate for the Platform.
5.6
Where you make
available, or create, User Content on the Platform, you are deemed to have
granted us a non-exclusive, perpetual and worldwide licence to host and process
such content on the Platform. You also warrant that any such User Content does
not infringe the rights (including Intellectual Property Rights) of any person.
You agree to indemnify us and hold us harmless for all direct and indirect
damages, losses and costs of any kind incurred or suffered by us as a result of
or in connection with a breach of the warranty given by you in this clause 5.5.
6.1
You acknowledge
and agree that we own all Intellectual Property Rights in and to the Platform.
Except as expressly stated in these Terms, these Terms do not grant you any
Intellectual Property Rights in or to, or any other rights or licences in
respect of the Platform.
6.2
We acknowledge and
agree that, except for the rights you grant us to use User Content under these
Terms, unless otherwise agreed between the Users in a separate agreement, the
author of the User Content will own all rights, title and interest in and to
all User Content and that User will have sole responsibility for the legality,
reliability, integrity, accuracy and quality of User Content.
6.3
For User Content that
you make available, or create, on the Platform, you grant us a right to use
that User Content for:
(a)
any of the
purposes set out in the Privacy Policy (if applicable);
(b)
performing our
obligations under these Terms;
(c)
ensuring that you
are complying with these Terms;
(d)
improving or
enhancing the Platform (under limited conditions such as evaluating that User
Content will load after a Platform update, or further to a support request by a
User). User Content will only be accessed by authorised staff and access will
be logged;
(e)
performing data
analysis on an aggregated and anonymous basis.
6.4
If you are
providing us with personal information, then our Privacy Policy applies. Please
read the Privacy Policy carefully as it forms a part of these Terms.
7.2
In particular and
without limiting clause 7.1, we do not warrant:
(a) the accuracy, correctness, reliability
and completeness of any information provided by:
(i)
Users of
the Platform, including User Content; and
(ii) us on the Platform;
(b) that your use of, or access to, the Platform
will be uninterrupted or error-free;
(c) that the Platform will meet your
requirements;
(d) that the Platform will operate on all
types of devices;
(e) that the Platform will be secure or
free from Viruses. We will use reasonable endeavours to implement such measures
to prevent any Viruses from being introduced into the Platform, and to maintain
the security of the Platform (including the data stored on the Platform).
(c) the Platform may contain embedded
content and/or links to mobile applications, websites and resources provided by
third parties, and that such embedded content and/or links are provided for
your information only. We have no control over the content on those
applications, websites or resources, and accept no responsibility for any loss
or damage that may arise from your use of them;
(d) we rely on the provision of services
by third parties (including user login authentication, data centres,
telecommunications and outsourcing providers) in order to provide the Platform
(Third Party Providers) and that the Platform may be subject to
limitations, delays and other problems inherent in the use of such services
provided by Third Party Providers ; and
(e) we will not be responsible for any
delays, delivery failures, or any other loss or damage arising out of or in
connection with any services provided by Third Party Providers, including any
delays, delivery failures, or any other loss or damage resulting from the
transfer of data over communications networks and facilities, including the
internet.
7.5
You will indemnify
us against all costs, losses, expenses and damages incurred through any claims
against us resulting from your use of the Platform.
7.6
We will not be
liable to you for failing to perform our obligations under these Terms, or from
carrying on our business, by acts, events, omissions or accidents beyond our
reasonable control, including, without limitation, strikes, lock-outs or other
industrial disputes (whether involving our employees or any other party),
failure of a utility service or transport or telecommunications network or
service of a Third Party Provider, epidemic/pandemic (including COVID-19), act
of God, war, riot, civil commotion, malicious damage, compliance with any law
or governmental order, rule, regulation or direction, accident, breakdown of
plant or machinery, fire, flood, storm or default of suppliers or
sub-contractors, provided that you are notified of such an event, its impact on
your access to the Platform, and its expected duration.
7.7
The exclusions and
limitations of our liability to you set out in this clause 7 are subject to any
rights you have under the Consumer Guarantees Act 1993 and Fair Trading Act
1986 that cannot be excluded by agreement between you and us.
8.2
We may terminate
these Terms if your access to the Platform is provided under an agreement
entered into between us and the Provider (Master Subscription Agreement)
and that Master Subscription Agreement terminates for any reason.
8.3
Either party may
terminate these Terms if the other party:
(a) gives the other party at least 90 days
prior notice;
(b) is in material breach of these Terms
and fails to remedy such breach within 14 days of receiving notice from the
other party specifying the breach and requiring it to be remedied; or
(c) goes into liquidation or has a
receiver or statutory manager appointed of any of its assets, becomes insolvent
or makes any arrangement with creditors.
8.4
On termination of
these Terms:
(a)
access to the Platform
and all other licences granted to you under these Terms will immediately
terminate and you must cease using the Platform;
(b)
we will give you 90 days to export your content from the Platform and
after that period we may delete your content;
(c) the accrued rights of the parties as
at termination, or the continuation after termination of any provision
expressly stated to survive or implicitly surviving termination, will not be
affected or prejudiced; and
(d) to the maximum extent permitted by
law, you will not be entitled to a refund of any Subscription Fees paid.
9.
General
9.1
Notices and other
communications under these Terms are to be given in writing by email, personal
delivery or by post and must be:
(a) sent to the correct email address
designated in writing by each party for that purpose from time to time; and
(b) marked for the attention of the
designated person or office holder (if any).
9.2
A notice or
communication in relation to these Terms will be deemed to be received:
(a) in the case of a letter, on the third
Business Day after posting;
(b) in the case of email, on the Business
Day on which the email is successfully delivered;
(c) in the case of personal delivery, when
delivered.
9.3
These Terms
constitute the entire agreement between you and us in relation to the Platform and
supersedes any previous understanding or agreements on that subject matter.
9.4
If any part or a
provision of these Terms is judged invalid or unenforceable in a jurisdiction
it is severed for that jurisdiction and the remainder of these Terms will continue
to operate.
9.5
A provision or a
right under these Terms may not be waived except in writing signed by the party
granting the waiver.
9.6
A party to these
Terms may exercise a right, power or remedy under these Terms at its
discretion, and separately or concurrently with another right, power or
remedy. A single or partial exercise of a right, power or remedy by a party
under these Terms does not prevent a further exercise of that or of any other
right, power or remedy.
9.7
These Terms may be
varied by us at any time. Unless otherwise stated, amendments to these terms
will be effective upon notifying you of the changes via email, or by posting
the changes on the Platform. You must ensure that you have read, understood and
agree to the terms in these Terms. You agree that your continued use of the Platform
represents your agreement to be bound by the most recent terms.
9.8
You will not
assign, transfer or otherwise deal with these Terms or any of your rights or
obligations under these Terms, whether in whole or in part, without our prior
written consent.
9.9
These Terms will
be governed by and construed in accordance with the laws of New Zealand.
9.10
Should you wish to
take any action against us in respect of the Platform and/or these Terms, you
agree that any such action will be commenced only in the New Zealand courts.
9.11
If you have any
issues arising out of the Platform or these Terms, please contact us at: privacy.officer@oceanbrowser.com or via the contact details listed on
our website at https://www.ob3.io
