Published on 14 February 2020
Breathe Education Pty Ltd (ABN 30 154 699 019) Terms & Conditions of Service
80% attendance is required to pass
If you miss more than 20% of your course sessions you will need to pay a $500 Course Variation Fee to change to a different course group.
Changing to a different course group
If you change to a different course group you will have to pay a $500 Course Variation Fee to cover our costs. You must identify the course group you are changing to at the time you elect to make the change and pay the fee.
Making up missed assessments
If you miss a face to face session where there are practical assessments (noting that there can be multiple assessments allocated on a single day), you must make up each assessment by submitting a video to your trainer at a charge of $100 per assessment. This charge covers the time the trainer spends assessing your video.
Liability for course cost
You acknowledge and agree that when you enrol in your chosen course, subject to these Terms and your rights under Consumer Law, you assume liability for, and we are entitled to deduct from your nominated account, the full course cost, regardless of whether you are paying the Fee in instalments or in full at the time of enrolment.
If you cancel your course after you enrol, one of the following cancellation fees will apply:
1. Cancel >30 days prior to course start date: pay 10% of course Fee;
2. Cancel 1-29 days prior to course start date: pay 25% of course Fee;
3. Cancel from the course start date onwards: pay 100% of course Fee.
100% Satisfaction Guarantee
We will offer you a full refund of your course fees in the event you are not wholly satisfied with your experience. The following conditions apply:
1. You must have completed your course, have 80% attendance from advertised start time to advertised end time each day the course has run.
2. You must have successfully completed all practical assessment, e-learning and self-mastery requirements of your course. Successful completion means identified as competent and eligible to graduate. Details of these components are published at https://breathe.edu.au/requirements-to-graduate/
3. You elect to either receive your qualification or the full refund.
4. You have 5 business days after the completion of all course requirements to elect to obtain the full refund. You must notify Breathe of your request in writing within the stated timeframe.
5. Certain students are ineligible. Students with pre-existing Pilates qualifications
FULL TERMS AND 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 us.
These Terms apply to our 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 our 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 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.
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 Fee has the meaning given to it in this Agreement at clause 7.
Course Variation Fee has the meaning given to it in this Agreement at clause 7.
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.
Fee Waiver has the meaning given to that term at clause 8.4.
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 a periodic payment of the Fee for Accredited or Non-Accredited Training, in full, which may be 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, which may be determined by us, prior to or 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.
Satisfaction Guarantee has the meaning given to that term at clause 8.9.
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:
a. you have read and agree that our supply of Services to you is subject to these Terms;
b. upon receiving your login credentials to our e-learning platform you are required to log into our platform and join our Facebook Group;
c. you agree that all use of the e-learning platform and Facebook Group is subject to these Terms;
d. if you are under the age of 18 you must not access our Services without your parent or legal guardian’s consent;
e. 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
f. 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:
a. The Services and Information About the Services are provided in accordance with the ACL Consumer Guarantees, being:
I. The Services will be provided with due care and skill;
II. The Services will be fit for any specified purpose, that purpose being confined to the corresponding qualification further to which they are provided;
III. 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;
b. 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;
c. 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
d. 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.
e. 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.
f. 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.
g. 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:
a. the conduct of any other User of the Services or member of Facebook Group;
b. 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;
c. 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:
a. 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.
b. User Content is the sole responsibility of the person that provided the User Content to the Company.
c. 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.
d. 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.
e. to the extent permitted by law, under no circumstances will the Company be liable in any way for User Content.
f. 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.
g. 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:
h. that we, the Company, may use you name, likeness, audio-visual and/or photographic image for official purposes;
i. 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;
j. to grant the Company the right to crop and/or collage such image(s) identified at 6(h) and (i) with others;
k. 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;
l. 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. Deferring, cancelling or varying your enrolment
If you wish to defer or cancel your course, or you are required to vary your course because you have failed to meet the minimum attendance requirement, you will need to:
1. notify us in writing, by emailing email@example.com; and
2. pay the relevant fee.
If you are required to vary your course because you have failed to meet the 80% minimum attendance requirement, you will need to pay the Course Variation Fee of $500. We will not put a stop to Periodic Payments UNLESS AND UNTIL YOU HAVE PAID THIS FEE
If you want to cancel your course after you enrol, you will need to pay the relevant Cancellation Fee:
Cancel >30 days prior to course start date: pay 10% of course Fee;
Cancel 1-29 days prior to course start date: pay 25% of course Fee;
Cancel from the course start date onwards: pay 100% of course Fee.
3. If you are deferring your course, you must, at the time you notify us of the change, pay the applicable fee of $500 and also confirm the course you are deferring into. i.e. no indeterminate deferrals will be accepted.
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).
Subject to our obligations under Consumer Law and clause 7 of these Terms:
a. we do NOT offer any refunds for Non-Accredited Training Fees; and
b. for Accredited Training, we:
i. do NOT offer refunds of the Fee corresponding to training you have received, i.e.
1. NO REFUND FOR PERIODIC PAYMENTS that have already been made by you;
2. NO REFUND FOR ONLINE COURSE MATERIALS irrespective of whether you have accessed or used these materials in whole or part or when. These materials, in their entirety, are made available to you upon receipt of login credentials at enrolment time, you undertake to pace your use of these materials at your own initiative and this training is deemed delivered at the time you are provided first access to the materials. It is important that you understand what we mean by “deemed delivery” and your responsibilities in respect of completing online learning at your own pace. Please read section 8.5 below for details.
ii. We will cancel these Terms and may, at our sole discretion in accordance with these Terms and subject to our obligations under any applicable laws and regulations, relieve you of the obligation to pay any outstanding and future Periodic Payments, (being instalments of the Fee) ONLY AFTER you have paid any applicable Cancellation Fee or Course Variation Fee.
8.5 Deemed Delivery of the Services and Fee Waiver
We offer a Fee Waiver for Accredited Training for that part of the Services that has not been delivered to you, noting that all online training materials are deemed delivered at the time you are provided first access to these materials, irrespective of whether you have accessed them at all or when you have chosen to access them.
This section explains in detail what we mean by “deemed delivered” in relation to online materials and our expectations as you progress your learning with these materials.
I. our Services are delivered to you in one or a combination of the following components; face-to-face and online learning and assessment;
II. 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. .
III. once you have been provided login credentials to access the e-learning platform, we have delivered all the online materials corresponding to your course, i.e. these materials are deemed delivered to you. While we make recommendations about how a student should pace their online studies, it is your responsibility to pace your online studies and work through these materials. Once you are issued e-learning login credentials, the online component of our Services is deemed to have been delivered to you irrespective of whether or when you access these materials and how quickly or slowly you advance through these materials.
IV. 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.
V. by entering this Agreement, you have contracted to access and make use of all our online learning materials and have committed to paying for use of these materials irrespective of whether you use them or when you use them.
VI. Periodic Payments of the Fee that you have already paid are not refundable.
VII. The Fee Waiver applies to future Periodic Payments you are yet to make but which we are contractually entitled to charge you for, against the payment credentials you have supplied. We will apply a Fee Wavier ONLY AND AFTER you have paid any applicable Cancellation Fee or Course Variation Fee or Deferral Fee.
8.6 Fees – Cancellation / Variation Fee and Make Up Session Fee
Course Variation Fee
Subject to Consumer Law, a Course Variation Fee of $500 is charged in addition to the course Fee in the event you are required, due to poor attendance, to vary the provision of the Services outside the Cooling Off Period.
What is the attendance requirement? 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 not be able to complete your training in your current course and you will need to be deregistered out of your current course and into another iteration of that course.
The Course Variation Fee is non-punitive. It represents a reasonable estimate of our costs of reallocating you to a position in a new course and out from your old course.
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 Course Variation Fee.
Practical Assessment Fee .If you miss a face to face session where there are practical assessments (noting that there can be multiple assessments allocated on a single day), you must make up each assessment by submitting a video to your trainer at a charge of $100 per assessment. This is called a Make Up Session Fee.
Please note that you can only make up for a limited number of missed practical assessments by completing the video assessment and paying the Make Up Session Fee. The 80% minimum attendance requirement still operates.
8.7 Change of Mind
We do not offer any refund of the course 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. We do, however offer a Satisfaction Guarantee which is discussed below at clause 8.9.
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.
8.9 Satisfaction Guarantee
We will offer you a full refund of your course Fee in the event you are not wholly satisfied with your experience.
The following conditions apply:
1. You must have completed your course, have 100% attendance from advertised start time to advertised end time each day the course has run.
2. You must have not deferred or transferred from one course into another.
3. You must have successfully completed all practical assessment, e-learning and self-mastery requirements of your course and be eligible to graduate. Successful completion means identified as competent and eligible to graduate. Details of these components are published at https://breathe.edu.au/requirements-to-graduate/.
4. You elect to either receive either your qualification or the full refund.
5. You have 5 business days after the completion of all course requirements to elect to obtain the full refund. You must notify Breathe of your request in writing within the stated timeframe.
6. We may determine that certain students are ineligible to claim the 100% satisfaction guarantee refund. At the date of publishing, students with pre-existing Pilates qualifications are ineligible.
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
d. 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.
We are contractually entitled to continue to charge the Periodic Payment against the payment credentials you have provided and if you place a block or otherwise prevent us from using this payment form, you will be in breach of these terms of service and will have committed a Payment Default. The section below discusses how we can address acts of Default, including Payment Defaults.
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, failed payment fees, 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 firstname.lastname@example.org.
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
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.
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:
a. 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
b. 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.
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.
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.
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.
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
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.