Published on 3 July 2019
Breathe Education Pty Ltd (ABN 30 154 699 019) Terms & Conditions of Service
The Company provides Accredited Training and Non-Accredited Training in evidence-based rehabilitation and exercise methods (Services). Accredited Training programs are ASQA accredited training programs delivered by way of the Company’s e-learning platform and face-to-face components. Non-Accredited training programs may be delivered face-to-face, online by way of the Company’s e-learning platform or a combination of both. Use of the Services is subject to these Terms and Conditions of Service (Terms). By consenting to these Terms you are agreeing to enter a legally binding contract with Breathe Education.
These Terms apply to Breathe Education’s supply of the Services and to each student’s enrolment in an Accredited Training or Non-Accredited Training program. As part of every student’s enrolment, they are required to first review and agree to these Terms.
These Terms were developed in consultation with Breathe Education’s lawyers to ensure Breathe Education’s approach complies with Australian Consumer Law and the Standards for Registered Training Organisations (RTOs) 2015 (Cth) (“Standards”).
The following terms are adopted in these Terms of Service and have a specific meaning:
When we refer in this document to “We” or “us” or the “Company” we are referring to Breathe Education Pty Ltd ABN 30 154 699 019.
When we refer to “you” or “Student” we are referring to you, the student and consumer of our education services, specifically our Accredited Training and Non-Accredited Training programs.
When we refer to “services” or “training” or “program” or “courses” we are referring to our education services, specifically our Accredited Training or Non-Accredited Training programs and their components, which comprise learning resources made available on our digital platform, accessible to students and known as our e-learning platform and our face-to-face learning components.
Agreement means the agreement formed between Students and the Company under, and on these Terms of Service.
Accredited Training means an ASQA accredited education program.
ACL Consumer Guarantees means the statutory guarantees for Services provided for under the Australian Consumer Law Act 2010 (Cth).
ASQA means the Australian Skills Quality Authority.
Assessment Tools/Tasks means methods of study assessment utilise to track and record your performance as against the qualification criteria corresponding to the Services and your particular training program.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
Cancellation/Variation Fee has the meaning given to it in this Agreement at clause 8.
Consumer Law means Australian Consumer Law Act 2010 (Cth).
Cooling off period is a period of 30 days and commences from the date your enrolment commences.
Default has the meaning described in this Agreement at clause 9.
Facebook Group means the Breathe Edu students Facebook Group or another Facebook Group administered by us and specific to a particular course.
Fee means the price for the Services, in Australian dollars, exclusive of GST, specified by us at the time of your enrolment and published on our website, https://breathe.edu.au/ together with any other fee incurred further to the Terms of this Agreement, specifically the Cancellation/Variation Fee and the Make Up Session Fee.
GST has the meaning given to that term in the Act, A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Information About the Services means information communicated on the Facebook Group.
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
Lesson means any video, text, audio or written/hard copy content the Company makes available to you for the purposes of providing the Services.
Make Up Session Fee has the meaning given to it in this Agreement at clause 8.
Non-Accredited Training means a training program that is not ASQA accredited and related to education in evidence-based rehabilitation and exercise methods.
Payment Schedule means the schedule further to which Periodic Payments are made.
Privacy Act means the Privacy Act 1988 (Cth).
Payment Default has the meaning described in this Agreement at clause 9.
Periodic Payment means payment of the Fee for Accredited or Non-Accredited Training, in full, by way of partial payments deducted by us using the payment credentials you have supplied, and, in respect of our Accredited Training, are made in accordance with our compliance obligations as an ASQA Registered Training Organisation. Periodic Payments are charged at intervals, determined by us, throughout the duration of our provision of the Services and commencing upon enrolment.
Registered Training Organisation means a registered training provider registered by ASQA to deliver vocational training services.
Statement of Attainment means a transcript listing units of competency achieved and completed with us and relates to components of a training program that have been successfully completed. Note, this is not a qualification.
Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Terms of Service means these terms and conditions of using Breathe Education services, as updated from time to time, which can be found at https://breathe.edu.au/.
User means any enrolled student or consumer of our Services, or member of the Facebook Group.
User Content means images, information, documents or other data that is uploaded or input into the e-learning platform by the User or that forms part of the User’s Intellectual Property.
3. Supply of the Services
Any information we provide in respect of the Services does not constitute an offer to sell but constitutes an invitation to treat only, and is subject to the availability of the Services, which may change from time to time.
By submitting your enrolment, you are offering to purchase the Services at our current price at the date you submit your enrolment and is deemed accepted by us upon notification by us, to you, of your login credentials to our e-learning platform, which will be made to your nominated email address provided in your enrolment submission.
Upon submitting your enrolment (whether you have done so by way of our website or on a telephone call with one of our team) you agree that:
- you have read and agree that our supply of Services to you is subject to these Terms;
- upon receiving your login credentials to our e-learning platform you are required to log into our platform and join our Facebook Group;
- you agree that all use of the e-learning platform and Facebook Group is subject to these Terms;
- if you are under the age of 18 you must not access our Services without your parent or legal guardian’s consent;
- you shall be responsible for paying the Fees for our Services from the date your enrolment commences, being the date we provide your login credentials to our e-learning platform to you; and
- we may suspend provision of the Services, including your access to our e-learning platform if you breach the terms of this Agreement.
4. Guarantee and limitation of liability
Our e-learning platform is the place you will find components of our Services that are delivered online that you are required to complete at your own initiative and pace. They comprise Lessons and Assessment Tasks/Tools.
Face-to-Face learning opportunities are the classes you attend in person, if your training includes this component. Accredited Training includes face-to-face components. Non-Accredited Training may or may not include face-to-face learning components. Face-to-face learning opportunities comprise Lessons and Assessment Tasks/Tools.
The Facebook Group is the place where you will find information about the Services shared amongst your student cohort (Information About the Services).
You agree that:
- The Services and Information About the Services are provided in accordance with the ACL Consumer Guarantees, being:
- The Services will be provided with due care and skill;
- The Services will be fit for any specified purpose, that purpose being confined to the corresponding qualification further to which they are provided;
- The Services will be supplied within a reasonable time, being the time commencing upon issue of your enrolment credentials until the stated end date of your training, which may be varied in accordance with these Terms;
- Except to the extent the Services are supplied in observance of the ACL Consumer Guarantees or similar legislation of other States or Territories, you rely on the Services and Information About the Services at your own risk and in no event will the Company or the Company’s related entities be liable to you for your reliance on the Services and/or information provided to you about the Services;
- Except as expressly provided in clause 4(a), all conditions and warranties, whether express or implied by law or otherwise in respect of the Services or any advice, recommendations or information regarding the Services provided by the Company which may, apart from this clause, be binding on the Company are excluded to the fullest extent permitted by law; and
- To the fullest extent permitted by law, the Company is discharged from any liability in respect of the Services being wrong or defective or the Information About the Services being inaccurate and the maximum liability the Company will be liable to you for breach of this Agreement or in respect of the provision of the Services is limited, at the Company’s option to the re-supply of the Services or payment of the cost of re-supply of the Services.
- Without limiting any other provision of this Agreement, the Company, its related entities, their officers, employees, contractors and consultants are not liable for any Loss a student suffers as a result of improper engagement in the use of the Services or the Information About the Services, including but not limited to use of the Services or Information About the Services that is otherwise inconsistent with the instructions of the Company, its related entity, or their officers, employees, contractors or consultants.
- The term “Loss” means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
- The term “Consequential Loss” means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunities.
5. Conduct in using the Services and Facebook Group
You agree that in using the Services and Facebook Group you will abide by the terms of our Code of Conduct and that the Company accepts no responsibility and is not liable for:
- the conduct of any other User of the Services or member of Facebook Group;
- any interaction between Users of the Services or members of the Facebook Group, whether that interaction occurs via the e-learning platform, Facebook Group or otherwise;
- the Company makes no warranty or representation as to the accuracy of any information provided by any User of the Services / member of the Facebook Group or as to the character or credentials of any User / member of the Facebook Group.
6. Student generated content and content generated with or about students
Student Generated Content
You acknowledge and agree that:
- we may enable a User to create User Content, but that by doing so that User shall not acquire an interest to any Intellectual Property owned by the Company, which may exist in the Company, or is owned or exists in a third party.
- User Content is the sole responsibility of the person that provided the User Content to the Company.
- the User indemnifies the Company for any User Content that is illegal, offensive, indecent or objectionable that the User makes available using the Services or the Facebook Group.
- the Company may suspend accessibility to, remove or edit User Content via the e-learning platform or the Facebook Group that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.
- to the extent permitted by law, under no circumstances will the Company be liable in any way for User Content.
- the User warrants that it has all necessary Intellectual Property Rights to use User Content, and shall indemnify the Company for any infringement the User commits of third-party Intellectual Property Rights by using User Content on e-learning platform or Facebook Group.
- in order to provide the Services afforded by the e-learning platform or Facebook Group, where the User Content includes the User’s brand, logo or other intellectual property, it grants the Company a worldwide, revocable license to use the User Content, for the term of this Agreement.
Content Generated with or about students
In the course of attending face-to-face components of our Services (if your training includes this), or otherwise in the course of us delivering the Services, we may take photos or film or other visual or audio recordings of you, our student.
You acknowledge and agree:
- that we, the Company, may use you name, likeness, audio-visual and/or photographic image for official purposes;
- that you consent to the publication of your visual or aural representation, photographic image and name in our marketing and education materials, including publication to our website and e-learning platform and grant to the Company the right to use the photograph/s and photographic negative/s (whether digital or film) for these, and any other purpose, which may include, but is not limited to publication of emails, banner ads, posters, newsletters, newspapers, catalogues, video collages, etc;
- to grant the Company the right to crop and/or collage such image(s) identified at 6(h) and (i) with others;
- that we may transmit the image(s) or video identified at 6(h) and (i) in digital form over the Internet and that, while we will exercise reasonable precautions to secure the image from distribution outside of our network, the image(s) may inadvertently be transmitted to third-party computers;
- that you release and forever discharges the Company, its agents, officers, employees and contractors from any and all claims and demands arising out of or in connection with the use of photographs/film/other audio-visual material identified at 6(h) and (i), including but not limited to, any and all claims for invasion of privacy, defamation, or financial compensation.
7. Terminating or varying your enrolment
If you wish to, or further to this Agreement, are required to terminate, vary or defer the provision of Services before completing your training, you must notify us in writing, by emailing firstname.lastname@example.org AND if you are varying or deferring, pay the Cancellation / Variation Fee or Make Up Session Fee.
8. Fees, Payment and Refunds
You are liable to pay the Fee for the Services upon commencing your enrolment, which occurs once we have received your enrolment submission and issued you your login credentials to the e-learning platform.
You will have supplied your payment credentials upon submitting your enrolment and further to the terms of this Agreement, you agree that we are to use these credentials to deduct the Fee.
For Non-Accredited Training we may charge the Fee either up front or on an agreed payment schedule. By agreeing to these Terms, you agree to us deducting the Fee at intervals, to be determined by us, throughout the duration of your course, commencing from the date of your enrolment.
For Accredited Training we charge Periodic Payments of the Fee which are deducted by us (using the payment credentials you have supplied to us upon enrolment) in accordance with our compliance obligations as an ASQA accredited Registered Training Organisation. For this reason, the Fee may not be paid in full up front. By agreeing to these Terms, you agree to us deducting the Fee at intervals, to be determined by us in accordance with our ASQA compliance requirements, throughout the duration of your course, commencing from the date of your enrolment.
For Periodic Payments: When you enrol we will confirm with you when your Periodic Payments are due to be made (Payment Schedule) and it is your responsibility to ensure that we are able to charge the payment to you using the payment credentials you supplied to us upon enrolment. You acknowledge and agree that we may alter the Payment Schedule as required. If we alter your Payment Schedule we will give you reasonable notice of this.
Any Fees charged by the Company to you, unless expressed otherwise, shall be deemed exclusive of GST. The Company will provide you with a Tax Invoice for any payments of the Fee or of any other fees incurred further to the terms of this Agreement (e.g. the Cancellation/Variation Fee or the Make Up Session Fee).
8.3 Cooling off period
If you decide you do not want to continue with your training and wish to cancel the Services, you can terminate this Agreement within 30 days from the date your enrolment commenced. To do so, you will need to notify us in writing. Upon receiving your notice, we will un-enrol you from your training, terminate provision of the Services and issue you a full refund of the Fee. You will not be required to pay a Cancellation/Variation Fee.
Subject to our obligations under Consumer Law:
- we do NOT offer any refunds for Non-Accredited Training Fees; and
- for Accredited Training, we:
- do NOT offer refunds of the Fee corresponding to training you have received, inclusive of online training which is deemed delivered upon your receipt of login credentials accessing it); and
- Do offer a Partial Refund for Fees for training you are yet to take, but we will continue to charge the Fee, payable by way of Periodic Payments until you have paid the Cancellation / Variation Fee, so
TO BE CLEAR WE DO NOT REFUND PERIODIC PAYMENTS THAT HAVE ALREADY BEEN MADE BY YOU AND WE WILL CONTINUE TO CHARGE THESE UNTIL YOU HAVE PAID THE CANCELLATION / VARIATION FEE OF $500.
8.5 Calculating Partial Refund and Deemed Delivery of the Services
Subject to Consumer Law, Partial Refunds do not apply for Non-Accredited Training and a Partial Refund of Fees for Accredited Training is a refund for only that portion of the Fee that corresponds to that part of the Services that has not yet been delivered to you.
It is important to us that you understand what we mean by “delivered”. By “delivered”, we mean any course content that has been made available to you, whether by way of our e-learning platform or face-to-face delivery. For this reason, you acknowledge and agree that:
- our Services are delivered to you in one or a combination of the following components; face-to-face and online learning and assessment;
- our provision of the Services commences when you submit your enrolment and it is confirmed by us in the form of a confirmation email providing you with login credentials to the e-learning platform where you are required to access the online learning materials and pace your online learning at your own initiative. While we make recommendations about how a student should pace their online studies – details are on our e-platform and vary based on the training program – it is ultimately up to each student as to how fast or slow they progress through their studies. A student’s actual or expected progression through the e-learning materials does not bear on the deemed delivery of this aspect of our Services. Once you have completed enrolment and have been issued e-learning login credentials, the online component of our Services is deemed to have been delivered to you irrespective of how quickly or slowly you advance through these materials;
- delivery of the online components of the Services is deemed to be delivered when you are issued access credentials to the e-learning platform. This is the case irrespective of whether or when you decide to access those materials;
- by entering this Agreement, you have committed to attending all your face-to-face sessions and you have contracted to pay for these sessions irrespective of whether you attend them or not. We will continue to charge the Fee, deducted in Periodic Payments until such time as you pay the Refund / Cancellation Fee. In the event you do not attend a face-to-face session, and you still fall within the minimum 80% attendance requirement, you will be required to attend a Make Up Session and will be charged a Make Up Session Fee to complete the practical learning activities you have missed;
- Periodic Payments of the Fee are not refundable because they are made in respect of a portion of the Services that have been delivered to you and/or you have contracted to pay for. Only where you have made payment for the Services and that part of the Services has not yet been delivered to you (whether that part is online or face-to-face) and you have paid the Refund / Cancellation Fee will you be entitled to a Partial Refund.
8.6 Fees – Cancellation / Variation Fee and Make Up Session Fee
Cancellation / Variation Fee
Subject to Consumer Law, a Cancellation / Variation Fee of $500 is charged in addition to the Fee in the event you wish or are required to cancel or vary the provision of the Services outside the Cooling Off Period. The Cancellation / Variation Fee is non-punitive. It represents a reasonable estimate of our costs of unenrolling you from our internal systems and, in relation to the provision of training that includes face-to-face learning components, of the losses that we incur and are associated with the place we have held for you in the training course that you have been enrolled in that would otherwise have been occupied had you not filled it. If you are entitled to a Partial Refund of your Fee, you must first pay the Cancellation / Variation Fee before we cease charging you the Fee by way of Periodic Payments.
If you are enrolled in Accredited Training and you do not meet the 80% minimum attendance requirement for the face-to-face components (or sessions) of your training you will need to pay the Cancellation / Variation Fee. Therefore, if you can’t or have not attended 80% of the face-to-face sessions of your training program, you will be required to cancel out of your training program and enrol in a new iteration of that training program and the Cancellation / Variation Fee will be applied.
We do not offer any refund in the event you are enrolled in Non-Accredited Training that includes face-to-face learning sessions and you do not attend those sessions. Depending on the course, you may also forfeit your opportunity to complete the course.
For illustrative purposes, let’s say your big red dog dies. You have to go to his funeral and you miss a face-to-face class. You’ve already missed a few. This means you fail to meet the 80% minimum attendance requirement for your course. Unfortunately, this means you must pay the Variation/Cancellation Fee.
Make Up Session Fee
A Make Up Session Fee of $150 for each Make Up Session is charged in addition to the Fee and to the Cancellation / Variation Fee in the event you miss one or more of your face-to-face sessions that incorporate practical and/or mandatory course requirements, but are still within the 80% attendance requirement. The make-up sessions are run periodically. You may need to attend more than one make-up session, which shall depend on the course requirements you need to complete.
We charge a Make Up Session Fee because these sessions are not part of the course stream you originally contracted to attend and constitute a variation to the Services you have agreed to pay for and we have agreed to provide further to these Terms. The Make Up Session Fee is non-punitive. It represents a reasonable estimate of our costs of accommodating you in a supplementary face-to-face learning sessions.
For illustrative purposes, let’s say your big red dog dies. You have to go to his funeral and you miss one face-to-face class and you’ve missed two more prior to that. If the 80% minimum attendance requirement requires you to attend two additional face-to-face sessions, this means you must pay the Variation/Cancellation Fee to move courses.
8.7 Change of Mind
We do not offer any refund of the Fee outside the Cooling Off Period for Services that have been delivered if you change your mind or your personal circumstances change after your enrolment is confirmed and you can no longer participate in your training program.
8.8 Extenuating Circumstances
We reserve a discretion, exercised by us alone, to vary our enforcement of these Terms in the event that there are special circumstances that warrant us to do so and are to the benefit of you, our Student. Such circumstances are assessed on a case-by-case basis and any decision on our part as to the exercise of this discretion is final. Please note, we do not consider changes in your personal circumstances that are beyond our influence or control in and of themselves extenuating circumstances. For this reason, we do not consider students falling pregnant, changes to work situations or schedules or getting married extenuating circumstances for the purpose of this clause.
For illustrative purposes, let’s say you get struck by lightning. This is an event that is outside of your control. It is also very serious. In these circumstances, precisely because being struck by lightning is beyond your control and very serious, we will consider exercising our choice (not yours) to relieve you of your contractual obligations. By contrast, let’s say you get struck by cupid’s arrow and you fall in love and consequently have to move to Mauritius with your beloved. This is great, but not serious, and within your control (the moving part, not the falling in love part). For these reasons we won’t consider your situation warrants exercising our choice (not yours) to relieve you of your contractual obligations. Examples of the types of situations we will consider (but are not obliged to recognise as) extenuating circumstances are:
- Death of a family member in your immediate family;
- Serious medically diagnosed illness – of you or of a member in your immediate family.
In all situations when we consider extenuating circumstances we will ask you to support your request with documentation that demonstrates to our satisfaction (not yours) your claim. For example, if you identify that you have a medically diagnosed illness, we will ask for supporting documentation and will require a degree of specificity about your medically diagnosed illness that will address why you are unable to attend.
9. Non-payment & Student default
9.1 Student default
You will be in breach of these Terms and Conditions and in Default if:
a. You breach our Code of Conduct;
b. You breach the terms of this Agreement as they apply to Confidentiality or Intellectual Property;
c. You make or cause a Payment Default to be made; or
- You are declared or commit an act of bankruptcy, enter into an arrangement or composition with your creditors, signs an authority under Part X of the Bankruptcy Act or any execution is levied against your property.
9.2 Payment Default
By submitting your enrolment, you consent for the Company to deduct the Fee for your training program. For Accredited Training the Fee is deducted in the form of Periodic Payments and for Non-Accredited Training the Fee is deducted either in one go upon confirmation of your enrolment or in the form of Periodic Payments. By agreeing to our Terms, you agree to our use of the payment credentials you have supplied to us in order to deduct the Fee for the Services.
In the event that you do not make payment of the Fee for our Services, including if a Periodic Payment or other payment is declined (Payment Default), we will contact you to advise you of the Payment Default and request prompt or immediate payment.
9.3 Consequence of Student Default
For clarity, you acknowledge and agree that time is of the essence in so far as it relates to any obligation to pay the Fee or any money owed further to this Agreement, and that any Default, including a Payment Default is to be regarded a material breach of this Agreement.
In the event that a Default occurs, the Company reserves the right to:
a. terminate or suspend delivery of the Services, including the e-learning platform and the Facebook Group;
b. take any action it considers reasonably necessary to secure performance of this Agreement, including but not limited to referral of the matter to a third party, such as the Company’s lawyers, to recover any debt owed to the Company, charge interest on all amounts you owe us at the rate of 1% per month calculated daily and payable by you for each day immediately following the due date for payment until payment is made in full;
c. be reimbursed for, and recover from you, all costs and expenses incurred by the Company in seeking to collect amounts owed by you, including, without limitation, the costs of any collection agents the Company engages, and the legal costs (on a solicitor and client basis) the Company pays;
d. demand immediate payment for all Services delivered to you by the Company, the payment of which would otherwise not have been then due and payable;
e. terminate or suspend delivery of any Services which is the subject of any other sale between you and us; and
f. terminate this Agreement and cease providing you with the Services. The Company will not be obliged to notify you before exercising its rights as outlined above and these rights will be in addition to any other rights that the Company may have at law or in equity.
10. Academic and Financial Credit
If you transfer out of, or cancel your enrolment in one training program and enrol in another within 12 months of transferring or cancelling your enrolment in the first training program, you will, subject to the provisions of this clause 10, receive academic credit for completed units of study common to both training programs and financial credit for any course payments you have made towards those units of study under these Terms of Service, less the Cancellation/Variation Fee.
If you re-enrol in the same training program within 12 months of cancelling your enrolment, you will receive from us financial credit for any payments you have made towards your training program under these Terms of Service, less the Cancellation/Variation Fee.
If you cancel your enrolment and terminate the provision of our Services, you will receive a Statement of Attainment for any units of study that you have completed. Incomplete units are not eligible for academic credit.
If you have successfully completed a unit of study you will receive academic credit for that unit of study for so long as we retain our ASQA accreditation for that particular Accredited Training program. From time-to-time (approximately every 5 years) we re-accredit our Accredited Training programs with ASQA. If you enrol in a later training program that happens to fall after a re-accreditation, you will not receive academic credit if the unit of study you completed in the earlier training program is no longer part of the re-accredited training program. On the other hand, if the unit of study completed in the earlier training program is part of the re-accredited training program you will receive academic credit for it. In all instances we endeavour to recognise prior learning where sufficient evidence of same is provided but we reserve the exclusive right to determine whether a particular training program qualifies for academic credit and/or a student is recognised for prior learning.
For the purpose of this clause:
Confidential Information means the following, whether or not in material form:
a. all information already disclosed or to be disclosed or made available by the Recipient to the Discloser further to the terms of this Agreement or otherwise divulged to the User in the course of the Discloser providing the Services;
b. that part of all notes and other records prepared by the Recipient or the Discloser based on, or incorporating, the Confidential Information; and
c. all copies of any Confidential Information.
Discloser means the Company
Permitted Purpose means the provision of the Services to the Student.
Recipient means the you, the Student.
11.2 Disclosure and use
The Recipient must:
a. keep the Confidential Information in strict confidence and only use the Confidential Information for the Permitted Purpose;
b. not disclose, or cause or permit the disclosure of, the Confidential Information nor allow any other persons to do so, except with the prior written consent of the Discloser;
c. not make use of the Confidential Information to the commercial, financial or competitive disadvantage of the Discloser nor allow any other persons to do so; and
d. not reproduce any Confidential Information,
except where the Confidential Information is required to be disclosed by applicable law, or under compulsion of law by a court or Government agency, as long as the Recipient discloses the minimum amount of Confidential Information required to satisfy the law and before disclosing any information, the Discloser
e. promptly notifies the Discloser before making any such disclosure;
f. takes all reasonable measures to oppose or restrict such disclosure, or to make disclosure on terms which preserves as far as possible the confidentiality of the Confidential Information; and
g. takes such steps as reasonably required by the Discloser (at the Discloser’s cost) to permit the Discloser to have a reasonable opportunity to oppose or challenge or restrict the disclosure by lawful means; or
h. is or becomes available in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence.
11.3 Breach and remedy
The Recipient must notify the Discloser immediately if it becomes aware of a suspected or actual breach of this clause and take all reasonable steps (other than initiating court proceedings), at its own expense, required to prevent or stop the suspect or actual breach.
11.4 Injunctive relief
The Recipient acknowledges that the Discloser may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the Discloser, that monetary damages would be an insufficient remedy and in addition to any other remedy available at law or in equity, the Discloser is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause.
The Recipient indemnifies the Discloser and its related entities for any actual and direct loss or damage suffered by the Discloser or its related entities resulting from a breach of this Agreement by the Recipient or as a result of any unauthorised use or disclosure of any Confidential Information by any Permitted Person.
11.6 Return or destruction
Subject to clause 11.7, if requested by the Discloser, the Recipient’s right to use the Confidential Information ceases and the Recipient must immediately, at the Discloser’s sole option: return to the Discloser; destroy and certify in writing to the Discloser the destruction of; or destroy and permit the Discloser to witness the destruction of all Confidential Information.
Clause 11.6 does not apply to or require the return, deletion, alteration or destruction of any legal advice or opinions prepared for or by the Recipient.
12. General Conditions
By accepting the terms and conditions of this Agreement, you, the User is granted a limited, non-exclusive and revocable licence to access and use the Services, including the e-learning platform and the learning materials contained on it, for the sole purpose of the provision of the Services to you, for the duration of this Agreement, in accordance with the terms and conditions of this Agreement. The Company may issue the licence to the User on the further terms or limitations as it sees fit. The Company may revoke or suspend the User’s licence in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.
12.2 Modification of Terms
The terms of this Agreement may be updated by the Company from time-to-time. Where the Company modifies the terms, it will endeavour to provide, but is not required to give notice or a copy of the updated Agreement to the User, which may be found, published on https://breathe.edu.au/. It is the User’s responsibility to ensure that it has read, and the User will be required to accept the modified Agreement when such updates are made.
12.3 E-learning platform; software-as-a-Service
The User agrees and accepts that the Company’s e-learning platform is:
a. Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the servers operated by the Company and is not available ‘locally’ from the User’s systems; and
b. Managed and supported exclusively by the Company from the servers operated by the Company and that no ‘back-end’ access to the e-learning platform is available to the User unless expressly agreed in writing.
As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the e-learning platform.
The Company provides user support for the e-learning platform via the email address email@example.com.
The Company shall endeavour to respond to all support requests within 3 Business Days.
12.5 Use & Availability
The User agrees that it shall only use the Services for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
The User is solely responsible for the security of its username and password for access to the e-learning platform. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its account.
The User agrees that the Company shall provide access to the e-learning platform to the best of its abilities, however access to platform may be prevented by issues outside of the Company’s control and it accepts no responsibility for ongoing access to the e-platform, except to the extent that it required to do so further to the terms of the ACL Consumer Guarantees or similar legislation of other States or Territories.
Security. The Company takes the security of the e-learning platform and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
Storage. The Company stores data on servers based in Australia and elsewhere globally according to accepted industry standards. If the User requires its User Content to be stored in a different location, the Company may charge the User a fee to do so.
Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Information from any period of time unless so stated in writing by the Company.
12.8 Intellectual Property
Trademarks. The Company has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Services or the Information About the Services.
Services, including but not limited to the e-learning platform. The User agrees and accepts that Services, including but not limited to the e-learning platform and content contained on it is either the Intellectual Property of the Company or the intellectual property of a third party further to which the Company is licensed to use that Intellectual Property and the User further warrants that by using Services the User will not:
c. Copy the Services, including but not limited to the information contained on the e-learning platform or otherwise provided to the User, or any part thereof, for any other purpose except the User’s use of the Services; or
d. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the e-learning platform or any documentation associated with it.
Content. All content submitted to the Company, whether via the e-learning platform or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the e-learning platform.
12.9 Disclaimer of Third Party Services & Information
The User acknowledges that the Company’s Services, including but not limited to the digital platform hosted on its website, further to which enrolment may be made by you and your payment credentials and other information supplied; the e-learning platform; and the Facebook Group are dependent on third-party services, including but not limited to:
a. Banks, credit card providers and merchant gateway providers;
b. Telecommunications services;
c. Hosting services;
d. Email services; and
e. Analytics services.
The User agrees that the Company shall not be responsible or liable in any way for Interruptions to the availability of the Services or the Facebook Group due to third-party services or information contained on any linked third-party website.
We may terminate this Agreement for no reason by giving you one months’ written notice and immediately if it appears you are in breach of these terms or our Code of Conduct.
You may terminate this Agreement at any time upon written notice, noting that full and Partial Refunds are available further to the terms of this Agreement and that a Cancellation / Variation Fee applies in the event you terminate the Agreement outside the Cooling Off Period.
Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
All of the rights and obligations of each party under these terms and conditions which are expressed as surviving termination and/or expiry, or which by their nature or context must survive termination and/or expiry, will survive the termination and/or expiry of this Agreement.
12.11 Dispute Resolution
12.11.1 If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
a. Includes or is accompanied by full and detailed particulars of the Dispute; and
b. Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
12.11.2 Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
12.11.3 Subject to clause 12.11.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
12.11.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
12.11.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
12.12 Electronic Communication, Amendment & Assignment
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
Notices must be sent to the parties’ most recent known contact details.
The User may not assign or otherwise create an interest in this Agreement.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing. Any failure, delay, or omission by the Company to insist upon strict performance of this Agreement shall not constitute a waiver or variation of such obligations or rights or a waiver of the default or remedy thereof.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law and Jurisdiction. This Agreement is governed by the laws of Victoria, Australia. The Company may elect in which jurisdiction to commence legal action for enforcement of this Agreement.
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
Interpretation. The following rules apply unless the context requires otherwise:
a. Headings are only for convenience and do not affect interpretation.
b. The singular includes the plural and the opposite also applies.
c. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
d. A reference to a clause refers to clauses in this Agreement.
e. A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
f. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
g. A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
h. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
i. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
Breathe Education Pty Ltd (ABN 30 154 699 019) Code of Conduct
The Company provides Accredited Training and Non-Accredited Training in evidence-based rehabilitation and exercise methods (Services). Accredited Training programs are ASQA accredited courses delivered by way of the Company’s e-learning platform and face-to-face components. Non-Accredited training programs may be delivered face-to-face, online by way of the Company’s e-learning platform or a combination of both. Supply of and access to the Services is subject to this Code of Conduct, which applies to both our on and offline learning, and sets out standards of behaviour we expect from students and maintain in our learning environments. We publish our Code of Conduct on our website at www.breathe.edu.au. We may update this Code from time to time.
By enrolling in one our training programs you agree to be bound by our Code of Conduct. The overarching goal is to be inclusive to the largest number of participants, with the most varied and diverse backgrounds possible. As such, we are committed to providing a friendly, safe and welcoming education environment for all, regardless of gender, sexual orientation, ability, ethnicity, socioeconomic status, and religion (or lack thereof).
This Code of Conduct outlines our expectations for students and all those who participate in our education community, as well as the consequences for unacceptable behaviour.
2. Expected Behaviour
The following behaviours are expected and requested of all our education community members:
- Participate in an authentic and active way. In doing so, you contribute to the health and longevity of this community.
- Exercise consideration and respect in your speech and actions.
- Attempt collaboration before conflict.
- Refrain from demeaning, discriminatory, or harassing behaviour and speech.
- Be mindful of your surroundings and of your fellow participants. Alert community leaders if you notice a dangerous situation, someone in distress, or violations of this Code of Conduct, even if they seem inconsequential.
- Remember that community event venues may be shared with members of the public; please be respectful to all patrons of these locations.
3. Manual Guidance
There is a lot of touching involved in teaching evidence-based rehabilitation and exercise methods. In our Accredited Training programs, we include face-to-face learning opportunities and our Non-Accredited training may include face-to-face learning where our students engage in and practice this skill together. We call this Manal Guidance. Manual Guidance is important because it:
- Communicates care (e.g. pat on the shoulder);
- Helps teach correct movement (e.g. hands on ribs to reposition torso);
- Increases or decreases challenge of an exercise (e.g. a hand across the front of the ankles, supporting the legs in the roll up exercise); and
- Is always made with care and consideration for the people involved.
By submitting your enrolment, you agree to participate in learning environments that involve Manual Guidance and to participate in Manual Guidance yourself. You may revoke this consent at any time by notifying our staff or your teacher, as the situation requires.
It is important to note that what one student may consider acceptable touch may not be considered acceptable by another and that a set of rules about acceptable touch will never be exhaustive or appropriate for all situations. We expect students to exercise good judgment, to be aware that standards of acceptability are subjective and to make sure they are aware of other’s boundaries. Below is a guideline of what types of behaviours are acceptable types of Manual Guidance and what types of behaviour are not. If you have any questions about either, speak with your teacher or our staff.
- Touch administered to communicate care, prompt or teach correct movement, increases or decreases the challenge of an exercise
- Touch made with care and consideration for the people involved.
Not Acceptable Touch
- Touch that makes either person feel uncomfortable
- Touch that is too rough
- Touch that is made after someone has expressly requested for it to stop
4. Unacceptable Behaviour
The following behaviours are considered harassment and are unacceptable within our education community:
- Violence, threats of violence or violent language directed against another person.
- Sexist, racist, homophobic, transphobic, ableist or otherwise discriminatory jokes and language.
- Posting or displaying sexually explicit or violent material.
- Posting or threatening to post other people’s personally identifying information (“doxing”).
- Personal insults, particularly those related to gender, sexual orientation, race, religion, or disability.
- Inappropriate photography or recording.
- Inappropriate physical contact. See the section above for examples of inappropriate physical contact in the class environment.
- Unwelcome sexual attention. This includes, sexualized comments or jokes; inappropriate touching, groping, and unwelcomed sexual advances.
- Deliberate intimidation, stalking or following (online or in person).
- Advocating for, or encouraging, any of the above behaviour.
- Sustained disruption of community events, including talks and presentations.
5. Consequences of Unacceptable Behaviour
Unacceptable behaviour from any education community member will not be tolerated. Anyone asked to stop unacceptable behaviour is expected to comply immediately. If a community member engages in unacceptable behaviour, we may take any action deemed appropriate, up to and including a temporary ban or permanent expulsion from the community and cease in the provision of any or all of our Services without warning and without refund, in accordance with our terms and conditions of service.
6. Reporting unacceptable behaviour
If you are subject to or witness unacceptable behaviour, or have any other concerns, please notify us as soon as possible at firstname.lastname@example.org.
7. License and attribution
This Code of Conduct is based on the Citizen Code of Conduct and is distributed under a Creative Commons Attribution-ShareAlike license.
The Company provides Accredited Training and Non-Accredited Training in evidence-based rehabilitation and exercise methods (Services). Accredited Training programs are ASQA accredited courses delivered by way of the Company’s e-learning platform and face-to-face components. Non-Accredited training programs may be delivered face-to-face, online by way of the Company’s e-learning platform or a combination of both.
2. Application – who and what our policy applies to
3. Information We Collect
We collect Personal Information necessary and incidental to providing the Services and to our day-to-day operations. This information allows us to identify who an individual is for the purpose of our business, to share Personal Information, contact an individual in the course of our business and transact with that individual.
4. How is information collected
Most information will be collected in association with a student’s online enrolment and use of our website and e-learning system. However, we may also receive Personal Information from sources such as advertising, an individual’s own promotions, public records, mailing lists, contractors, staff, recruitment agencies and our business partners. In particular, information is likely to be collected as follows:
a. Enrolment: When a user enrols or engages in another process whereby they enter Personal Information details in order to receive or access something, including our services;
b. Sharing with other students: When a student provides Personal Information to other users of our website, e-learning platform or otherwise engages with other past or current consumers of our services;
c. Supply: When an individual supplies us with goods or services;
d. Contact: When an individual contacts us in any way;
e. Access: When an individual accesses us physically we may require them to provide us with details for us to permit them such access. When an individual accesses us through the internet we may collect information using cookies (if relevant – an individual can adjust their browser’s setting to accept or reject cookies) or analytical services; and/or
f. Pixel Tags: Pixel tags enable us to send email messages in a format customers can read and they tell us whether mail has been opened.
g. During the course of teaching and learning: because we encourage students to share their learning experience with one-another and we may record these experiences in writing, or in audio or visual form.
Because there are many contexts in which we may collect Personal Information, we cannot list them all, but will endeavour to communicate that this is what we are doing and that our students and prospective students are aware when their Personal Information is being collected. If we obtain someone’s Personal Information by accident, we will either delete or destroy it or inform the person who’s information it is.
5. When Personal Information is used or disclosed
a. We endeavour not to use any Personal Information other than for the purpose for which it was collected other than with an individual’s permission. The purpose of collection is determined by the circumstances in which the information was collected and/or submitted. We will only process Personal Information when we can identify a lawful basis to do so. It is always our responsibility to ensure that we can demonstrate which lawful basis applies to the particular processing purpose.
b. The most common lawful bases relied upon are with an individual’s consent and when we have legitimate interests. We will only rely upon express, clear and informed consent. We will keep a record of when and how we got consent from an individual, which you may revoke at any time upon written request, except in relation to the image/likeness waiver students complete as part of their enrolment which is a precondition to enrolment. We will only rely upon an identifiable legitimate interest where we can demonstrate that the processing of Personal Information is necessary to achieve it by balancing it against the individual’s interests, rights and freedoms. We will keep a record of our legitimate interests assessments.
d. If it is necessary for us to disclose an individual’s Personal Information to third parties in a manner compliant with the Australian Privacy Principles in the course of our business, we will inform you that we intend to do so, or have done so, as soon as practical.
e. We will not disclose or sell an individual’s Personal Information to unrelated third parties under any circumstances, unless the prior consent of the individual is obtained.
f. Information is used to enable us to operate our business, especially as it relates to an individual. This may include: provision of goods and services between an individual and us, verifying an individual’s identity, communicating with an individual about our services, their relationship with us or offers, marketing and promotions from either us or our partners, investigating any complaints made by or about an individual or alleged or actual breaches of our Terms and Conditions of Service, or as required or permitted under any law.
g. There are some circumstances in which we must disclose an individual’s information: these are where we reasonably believe that an individual may be engaged in fraudulent, deceptive or unlawful activity that a governmental authority should be made aware of; as required by any law (including the Privacy Act); and/or in order to sell our business (in that we may need to transfer Personal Information to a new owner).
i. We may utilise third-pay service providers to communicate with an individual and to store contact details about an individual. These service providers may or may not be located in Australia.
6. Opting in and out
An individual may opt to not have us collect their Personal Information. This may prevent us from offering them some or all of our services and may terminate their access to some or all of the services they access with or through us. Where relevant, the individual will have the right to choose to have information collected and/or receive information from us (Opt In); or the individual will have the right to choose to exclude himself or herself from some or all collection of information and/or receiving information from us (Opt Out).
b. We will take all reasonable precautions to protect an individual’s Personal Information from unauthorised access. This includes appropriately securing our physical facilities and electronic networks. We use SSL encryption to store and transfer Personal Information. Despite this, the security of online transactions and the security of communications sent by electronic means or by post cannot be guaranteed. Each individual that provides information to us via the internet, over the phone or by post does so at their own risk. We cannot accept responsibility for misuse or loss of, or unauthorised access to, Personal Information where the security of information is not within our control.
c. We are not responsible for the privacy or security practices of any third party (including third parties that we are permitted to disclose an individual’s Personal Information to in accordance with this policy or any applicable laws) unless otherwise required by the Privacy Act and the GDPR. The collection and use of an individual’s information by such third parties may be subject to separate privacy and security policies.
d. If an individual suspects any misuse or loss of, or unauthorised access to, their Personal Information, they should let us know immediately.
e. We are not liable for any loss, damage or claim arising out of another person’s use of the Personal Information where we were authorised to provide that person with the Personal Information.
f. Where there is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Information, then:
i. We will immediately establish the likelihood and severity of the resulting risk to wider rights and freedoms of natural persons;
ii. If we determine there is a risk from the security breach, then we will immediately notify the relevant supervisory authority and provide all relevant information on the particular breach, and by no later than 72 hours after having first become aware of the breach;
iii. If we determine there is a high risk from the security breach (a higher threshold than set for notifying supervisory authorities), we will immediately notify the affected individuals and provide all relevant information on the particular breach without undue delay.
g. We will document the facts relating to any security breach, its effects and the remedial action taken, and investigate the cause of the breach and how to prevent similar situations in the future.
8. Accessing and amending information
a. Subject to the Australian Privacy Principles and the GDPR, an individual has the right to request from us the Personal Information that we have about them, and we have an obligation to provide them with such information as soon as practicable, and by no later than 28 days of receiving the written request. The individual is free to retain and reuse their Personal Information for their own purposes. We may be required to transmit the Personal Information directly to another organisation if this is technically feasible.
b. If an individual cannot update their own information, we will correct any errors in the Personal Information we hold about an individual within 28 days of receiving written notice from them about those errors, or two months where the request for rectification is complex.
c. It is an individual’s responsibility to provide us with accurate and truthful Personal Information. We cannot be liable for any information that is provided to us that is incorrect.
d. Where a request to access Personal Information is manifestly unfounded, excessive and/or repetitive, we may refuse to respond or charge an individual a reasonable fee for our costs incurred in meeting any of their requests to disclose the Personal Information we hold about them. Where we refuse to respond to a request, we will explain why to the individual, informing them of their right to complain to the supervisory authority and to a judicial remedy without undue delay and at the latest within 28 days.
e. We may be required to delete or remove all Personal Information we have on an individual upon request in the following circumstances:
i. Where the Personal Information is no longer necessary in relation to the purpose for which it was originally collected and/or processed;
ii. When the individual withdraws consent;
iii. When the individual objects to the processing and there is no overriding legitimate interest for continuing the processing;
iv. The processing of the Personal Information was otherwise in breach of the GDPR;
v. The Personal Information has to be erased in order to comply with a legal obligation; and/or
vi. The Personal Information is in relation to a child.
f. We may refuse to delete or remove all Personal Information we have on an individual where the Personal Information was processed for the following reasons:
i. To exercise the right of freedom of expression and information;
ii. To comply with a legal obligation for the performance of a public interest task or exercise of official authority.
iii. For public health purposes in the public interest;
iv. Archiving purposes in the public interest, scientific research historical research or statistical purposes; or
v. The exercise or defence of legal claims.
9. Complaints and Disputes
If an individual has a complaint about our handling of their Personal Information, they should address their complaint in writing to The Data Protection Officer, Breathe Education Pty Ltd at email@example.com or at the Company’s registered postal address, details of which are found on our website.
If we have a dispute that relates in any way to an individual’s Personal Information, we must first attempt to resolve the dispute directly amongst us. An individual shall to seek a judicial remedy where he or she considers that his or her rights under the GDPR have been infringed as a result of the processing of his or her Personal Information in non-compliance with the GDPR. Any proceedings should be commenced in Victoria, Australia.
If we become aware of any unauthorised access to an individual’s Personal Information we will inform them at the earliest practical opportunity once we have established what was accessed and how it was accessed.
10. Contacting individuals
From time to time, we may send an individual important notices, such as changes to our terms and conditions of service and our policies. Because this information is important to the individual’s interaction with us, they may not opt out of receiving these communications.