Terms & Conditions

 

MuzikBoxx Terms of Use

 

Welcome to MuzikBoxx! Please read this document carefully. It governs your commercial relationship with us and sets out legally binding provisions that regulate your use of our Platform. Clause 20 includes a dictionary and provisions explaining how to interpret these Terms of Use.

 

Operative Provisions

MuzikBoxx is an online marketplace that connects music teachers with students who are seeking music lessons. The online platform consists of our website at www.muzikboxx.com and our related smartphone and tablet applications (and any updates, modifications and versions thereof) (collectively referred to in these Terms of Use as MuzikBoxx or our Platform). You may only use MuzikBoxx if you are a teacher or student/parent who is registered on the Platform. In these Terms of Use, music teachers who are registered on MuzikBoxx are described as “Teachers” and music students and their parents who are registered on MuzikBoxx are described as “Students”. Teachers and Students are collectively described as “Users”.

 

MuzikBoxx does not provide music lessons. We only provide a platform that is designed to connect Students with Teachers. It enables Students to browse our directory of Teachers and to book and pay for Tutoring Services. The Platform may be subject to downtime, disconnection, interruptions and errors from time to time, such as when a computer loses internet or network connectivity, “freezes” or runs out of battery, where our Platform does not operate due to telecommunications failure or fault, when we or our hosting providers or any third party providers are conducting planned or unplanned maintenance, or when any related hosting services go offline or suffer downtime for any reason, or as a result of other matters beyond our control. As a User, if you use, access and/or operate our Platform for any purpose, you agree that to the maximum extent possible by law: (a) you do so at your sole risk; (b) we shall bear no responsibility for any disconnection, downtime, unavailability, delays, defects, errors or failures of our Platform; (c) Tutoring Services are provided outside of our Platform and we do not make any representations as to the accuracy, certainty, relevancy, reliability, or quality of Tutoring Services that may be provided by a Teacher; and (d) you acknowledge that it is likely that our Platform will fail or be unavailable or inoperable from time to time. Additionally, you agree that: (a) we are not responsible for the acts or omissions of any User; (b) that Teachers are not our employees or representatives; and (c) that to the maximum extent possible by applicable law, we are not responsible for the quality or any performance or non-performance of any Tutoring Services that a Teacher may be engaged by a Student to provide via our Platform. You agree and acknowledge, that in no event will we be liable for the defamatory, offensive, criminal, unlawful or illegal conduct of Platform visitors, Users or third parties. While we take steps to verify the qualifications of Teachers, our Teacher Verification Process is not guaranteed. All Teachers must provide us with a current Working with Children Check before their MuzikBoxx Account can be activated.

 

1. Our Agreement

1.1 Our relationship with our Users is governed by these Terms of Use and our Privacy Policy located at www.muzikboxx.com/privacy-policy (Privacy Policy).

1.2.      If you are a Minor, then please read these Terms of Use and our Privacy Policy with your Guardian. If you are a Guardian, you guarantee that the Minor will comply with all of the terms and conditions of these Terms of Use and you must indemnify us from and against any loss or damage that we may incur as a result of the Minor’s breach of these Terms of Use.

1.3.      You may only access, browse and/or use our Platform if you accept these Terms of Use. By accessing, browsing and/or using our Platform, you will be deemed to have read, understood, and wholly and unconditionally agree to be legally bound by, and accept, these Terms of Use.

1.4.      We may modify and/or replace these Terms of Use from time to time without notice.

1.5.      We will always upload the latest version of these Terms of Use to this webpage.

1.6.      If you do not wish to accept these Terms of Use, you must not and cannot use our Platform (or any part of it).

 

2. Availability of our Platform

2.1.      We do not represent that our Platform will be available on an uninterrupted or error-free basis. We may modify, update and/or upgrade our Platform at any time and we may need to take down our Platform for maintenance purposes from time to time.

2.2.      You agree and acknowledge that the accessibility and use of our Platform is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which our Platform operates, interfaces with or connects to, and that we are not responsible for any non-performance or unavailability of our Platform associated with any of those matters.

 

3. User Accounts

3.1.   There are two (2) different types of Platform accounts that can be registered on our Platform:

  • accounts registered by Students (Student Accounts); and
  • accounts registered by Teachers (Teacher Accounts).

(collectively, MuzikBoxx Account(s)).

3.2.      Users must select a subscription plan for their selected MuzikBoxx Account at the time of registration. Pricing and other information on our available MuzikBoxx subscription plans are set out at www.muzikboxx.com/for-teachers (each, a Subscription Plan).

3.3.      Your selected Subscription Plan will determine the number of Lessons you can schedule, and number of students you have on the platform, if you have a Teacher Account.

3.4.      We reserve the right to accept or reject any registration for a MuzikBoxx Account and/or suspend access to any MuzikBoxx Account at any time, in our absolute discretion.

3.5.      If you have a MuzikBoxx Account:

  • you must not provide your username or password to any person;
  • you agree and acknowledge that you shall be solely responsible for the confidentiality and security of your username and password and any use of your MuzikBoxx Account (including unauthorised use by any person);
  • you must immediately notify us if you become aware of any unauthorised use of your MuzikBoxx Account; and
  • we are not responsible for any claims, damages or losses you may suffer by reason of any unauthorised use of your username or password.

3.6.      You can change your MuzikBoxx Account password by logging into your account, except if you create a MuzikBoxx Account via your current Facebook or Google account, in which case you will not be able to change your password on our Platform. You may change your Facebook or Google account by accessing the password change functionality on those platforms.

3.7.      The name that you provide upon registration of a MuzikBoxx Account, will be your display name, visible to all other Users of our Platform.

3.8.      You agree that you will treat other Users with respect.

3.9.      You cannot access any part of, or use any functionality made available through, our Platform unless you have registered a MuzikBoxx Account and subscribed to a Subscription Plan.

3.10.   Applicants for Teacher Accounts who do not meet any eligibility criteria specified by us may not register a Teacher Account. They must provide us with current Working with Children Checks (WWCC) and satisfy any other eligibility criteria that we specify, before we will activate a paid Teacher Account for them and allow them to interact with Student Accounts. Teachers with active Teacher Accounts must renew their WWCC from time to time to ensure that their WWCC does not expire. Upon our request from time to time, Teachers must produce a current WWCC to us.

3.11.   We do not represent, recommend or endorse any Teachers. Teachers are not our employees, representatives, agents or subcontractors. Further, we do not make any representations with respect to the quality of any Tutoring Services supplied by a Teacher. We do not provide refunds for Lessons or manage disputes between Teachers and Students. If you have a dispute with any other User of the Platform, please contact that User.

 

4. Bookings

    • Students can browse our directory of Teachers on our Platform.
    • Students who wish to procure Tutoring Services via our Platform, must do so by submitting Booking Requests to Teachers via our Platform, subject to the limitations of their selected Subscription Plan.
    • Each time a Student makes a Booking Request, the Student will be deemed to have made an offer to the Teacher for the Teacher to provide Tutoring Services as specified in the Booking Request.
    • A Booking Request is not binding upon a Student or a Teacher until and unless they are accepted by the Teacher and paid for by the Student (Booking).
    • Following an accepted Booking Request, Students must pay us upfront the total fee in accordance with the Teacher’s net rates for all requested Tutoring Services for that Teacher, a processing charge that will be deduced and retained by us in consideration for the User’s use of our Platform (MuzikBoxx Charge) and any applicable GST (collectively, the Tuition Fees).
    • We will issue a valid tax invoice to the Student upon confirmation of a Booking Request for payment of the Tutoring Services.
    • Booking Requests are not binding until and unless they are paid for. Bookings will be automatically cancelled if they are not paid for at least twenty-four (24) hours after a Booking.
    • Each time a Student makes a Booking Request that is accepted by a Teacher and paid for by the Student, the Teacher will be deemed to have agreed to provide the Tutoring Services, in consideration for the Student’s payment of the Tuition Fees as specified in the Booking.
    • All payments for Tutoring Services between Students and Teachers must be made through our Platform.
    • Teachers must not charge Students any fees in addition to the Tuition Fees with respect to any Booking.
    • If additional Tutoring Services following a Booking (including any additional or extended Lessons) are required by a Student following a Booking, the additional or extended Tutoring Services must be requested under a separate Booking Request.
    • Users are not to directly or indirectly approach, request or engage another User to provide or pay for music lessons or Tutoring Services, independently of our Platform.

 

5. Payment

    • When registering on our Platform, teachers are responsible for their compliance with any tax obligations that they may have under applicable law.
    • All fees and rates for Lessons chargeable by a Teacher are to be determined by the Teacher.
    • Rates may be varied by Teachers from time to time (except with respect to any Booking that has been made).
    • Rates listed on our Platform are exclusive of GST. All rates on our Platform are listed in Australian dollars and all amounts payable for the Tutoring Services shall be payable in Australian dollars.
    • Teachers may not provide Tutoring Services for less than the minimum wage under applicable law. Teachers must ensure that the fees that they have charged for the Tutoring Services enable them to receive at least the minimum wage (after deducting all expenses, the MuzikBoxx Charge, GST and other amounts payable by the Teachers in connection with the Tutoring Services that they provide).
    • If you have a Student Account, you may only purchase Tutoring Services via our Platform if you are authorised to use the credit card that you use to purchase Tutoring Services or if you are a Minor and have your Guardian process the payment on your behalf.
    • Students will be solely responsible for the payment of any and all credit card transaction fees or surcharges applied to payments made on our Platform or through a third-party payment processing provider that processes payments made on our Platform (the Payment Provider) in addition to the Tuition Fees, if any. The total Tuition Fees for a Booking Request will be displayed to the Student, prior to the Student entering their payment details.
    • We will hold the Tuition Fees in escrow until they are to be paid in accordance with this clause 5. Following the completion of each Lesson, we will remit payment of the Tuition Fees (less the MuzikBoxx Charge) to the relevant Teacher.
    • For a one-time Lesson, we will remit the entire payment for the Booking to the Teacher after the Teacher has confirmed that the Lesson has concluded (less the MuzikBoxx Charge). If a Booking is for more than one Lesson, we will only release the payment that is due for a Lesson once the Teacher has confirmed that the Lesson has concluded. Tuition Fees will be remitted 48 to 72 hours following the conclusion of each Lesson and will be paid to the Teacher. We remit payment by electronic funds transfer.
    • We are not responsible for any delay in any payment to a Teacher caused by any act, event, omission, accident or circumstance beyond our reasonable control including where due to bank holidays and/or the downtime of any payment gateway.

 

6. Cancellations

    • If you are a Student, we strongly recommend that take the time to review the public profile of a Teacher that you wish to book to provide you with Tutoring Services, to ensure that the Teacher represents that they can provide the Tutoring Services that you require, as we do not warrant the suitability of all or any Teachers listed on our Platform. Nothing in this clause 6.1 affects your right to obtain refunds under the ACL or any other applicable law.
    • Teachers and/or Students may cancel any scheduled or unscheduled Lesson that have been booked at any time, provided that the cancellation is not made after the scheduled commencement time for the Lesson (each a Cancellation).
    • Cancellations may be requested through a User’s account on our Platform.
    • Students agree that Cancellations will not result in the automatic refund of Tuition Fees in all circumstances.
    • If a Teacher has their account cancelled and/or suspended by us, or terminates their account at any time (for any reason), the applicable Students who have made Bookings with that Teacher will receive a refund for any cancelled Lessons that have not yet been completed by that Teacher.
    • If Booking Requests are rejected or unsuccessful for any reason (for example, due to another Booking Request having been requested for the same time slot), the unsuccessful Student will be notified and the Tuition Fees will be refunded in their entirety to the Student.
    • We may cancel any payments made via our Platform, with respect to any payments made erroneously by us to any User.

 

  1. Refunds
    • A request for a refund of a Lesson may be submitted by the Student to the Teacher but only within twenty-four (24) hours from the scheduled commencement of that Lesson (Refund Request). All Refund Request must be made via the User account on our Platform using the Teacher Chat function.
    • All submissions by a Student for Refund Requests are notified to the relevant Teacher.
    • Refund Requests are to be managed by the Teacher. We do not process and are not involved in Refund Requests. If you are a Student and you believe that a Teacher has not managed a Refund Request appropriately, please contact the Teacher.

 

  1. Third Party Payment Processing Services
    • We make no warranties and will have no liability whatsoever with respect to any third-party payment processing services made available on our Platform, or any transactions attempted or completed through a third-party payment processing service. You waive and release us from any liability owed whatsoever with respect to any taxes or calculations or exchange rate conversions provided in connection with payments made through our Platform.
    • Each time you make a payment using our Payment Provider, you will be deemed to have acknowledged, understood and agreed:
      • that the payment gateway may be affected by delays, defects, faults and/or other matters which render the payment gateway unusable. These matters may be caused by factors including technical difficulties with the performance or operation of our or the payment gateway ‘s software or hardware or due to problems or malfunctions with the Internet or other telecommunications networks;
      • that except in respect of any Non-Excludable Guarantees, we do not warrant, guarantee or represent that unauthorised access to information and data cannot occur, and that we are not responsible for the performance or non-performance of the payment gateway;
      • that you have relied on your own independent assessment and judgment in determining whether the payment gateway meets your requirements; and
      • to comply with the applicable terms and conditions of, and privacy policy of, the Payment Provider (collectively, the Payment Gateway Agreement), which are available on the Payment Provider’s website at Commbank (https://www.commbank.com.au/business/merchant-services/simplify.html?mch=ps&gclid=CjwKCAjw_YShBhAiEiwAMomsEHj02AJ7j6vIT2Aci93Ww4X35HcOggMXGE7fYJf40WvM_lr4CsKUvRoCgCAQAvD_BwE&gclsrc=aw.ds).
  • You indemnify us in respect of all and any loss or damage that we incur as a result of any breach by you of the Payment Gateway Agreement.

 

9. Third Party Tools

    • There may be third party software, applications, products and data that we may use in connection with our Platform (collectively, Third-Party Tools). You must indemnify us from and against any loss and/or damage that you may incur as a result of your use of these Third-Party Tools and/or interfacing our Platform with those tools, and you agree and acknowledge that:
      • the providers of the applicable Third-Party Tools, and not us, are the providers and publishers of the Third-Party Tools;
      • we are not responsible for the accuracy, quality or correctness of any Third-Party Tools and/or their suppliers;
      • your use of Third-Party Tools is subject to terms and conditions that we may notify you of from time to time;
      • your use of Third-Party Tools is at your sole risk, and not our risk;
      • we do not make any representations or warranties with respect to any Third-Party Tools (whether as to their performance, availability, compatibility with our Platform and/or with respect to any suppliers of Third-Party Tools; and
      • we are not responsible for the practices, and/or terms and/or policies of any Third-Party Tool suppliers.
    • You hereby release us from any claims that you may have against us with respect to any non-performance of our Platform and with respect to any loss, damage or corruption of any data, caused by Third Party Tools and/or the interfacing between any Third Party Tools and any data that you upload into our Platform.
    • The suppliers of Third-Party Tools are not our partners, co-joint venturers, representatives or agents.
    • We are not responsible for any downtime or non-performance of our Platform that occurs because a third party who operates software that our Platform connects to (via an API or otherwise) modifies, updates, upgrades or removes any part of that software.

 

10. Platform usage restrictions

    • You may not make any use of our Platform except as permitted by these Terms of Use and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our Intellectual Property Rights in our Platform. Without limiting the foregoing provisions, you must not, under any circumstances, sell or resell access to our Platform or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicense, copy or duplicate our Platform or any content that you receive from another User via our Platform. Additionally, you must not, nor may you permit any person to:
      • copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, create derivative works from or enhance our Platform (except as expressly permitted by the Copyright Act 1968 (Cth));
      • do any act that would or might invalidate or be inconsistent with our Intellectual Property Rights or those of our licensors;
      • use our Platform in any way that infringes our rights or the rights of any third party;
      • use our Platform to create any product or service that competes with our Platform; or
      • take any steps to circumvent any technological protections or security measure in our Platform.
    • You must not use our Platform or any part of our Platform in any way that is in breach of any statute, regulation, law or legal right of any person.
    • You must not use our Platform or any part of our Platform in breach of these Terms of Use.

 

11. Downtime and your obligations

    • You agree and acknowledge that the accessibility and use of our Platform, is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which our Platform operates, interfaces with or connects to, and that we are not responsible for any non-performance of our Platform associated with any of those matters.
    • Except in respect of any Non-Excludable Guarantees, we do not guarantee that our Platform or access thereto will be uninterrupted or error-free.
    • With respect to our Platform and your MuzikBoxx Account:
      • if you are a Student, you must not use our Platform except for engaging a Teacher to provide Tutoring Services;
      • if you are a Teacher, you must not use our Platform except to receive Booking Requests and confirm Bookings from Students;
      • we are not responsible for the security or maintenance of the computers and devices from which you access our Platform;
      • we are not responsible if you are unable to access our Platform due to problems with your internet connection; and
      • you must comply with the MuzikBoxx Acceptable Use Policy (set out in clause 12 of these Terms of Use) and all applicable laws.

 

12. Acceptable Use Policy

  • You agree that the following is strictly prohibited by these Terms of Use:
    • using our Platform to violate all or any legal rights of any person or company or other entity in any jurisdiction or to breach any person’s privacy (including by way of identity theft or “phishing”);
    • using our Platform to breach applicable law (such as using our Platform to make fraudulent offers of goods or services or by committing theft or fraud);
    • using our Platform in breach of any applicable law including laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of “pirated” software or otherwise;
    • introduction of malicious programs into our network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs);
    • using our Platform to carry out security breaches or disruptions of network communication. Security breaches include accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
    • using our Platform to execute any form of network monitoring that will intercept data not intended for you;
    • using our Platform to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or suppliers;
    • using our Platform to interfere with or deny service to anyone;
    • using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person’s use of our Platform;
    • sending unsolicited email messages through or to Users of our Platform in breach of the Spam Act 2003 (Cth); and
    • using our Platform to harass any other User or upload content via our Platform that is harassing, vulgar, indecent or discriminatory,

(collectively, the MuzikBoxx Acceptable Use Policy).

 

13. Intellectual Property Rights

    • You agree and acknowledge that these Terms of Use do not transfer or assign any Intellectual Property Rights to you.
    • As between you and us, we own all Intellectual Property Rights in our Platform.
    • You own all Intellectual Property Rights in your User Data that you upload or transmit via our Platform.
    • You have no rights in our Platform or in any part of it or in any modification or enhancement thereof, other than the rights temporarily granted to you to use our Platform pursuant to these Terms of Use. You must not take any step to invalidate or prejudice our (or our licensors’) Intellectual Property Rights in our Platform or otherwise.
    • You agree that any Intellectual Property Rights in any comments that you may provide to us in connection with our Platform or requests for new Platform features (each, an Improvement Suggestion) become our sole and exclusive property immediately upon you uploading or posting that Improvement Suggestion to our Platform or otherwise providing the Improvement Suggestion to us, and you hereby assign all Intellectual Property Rights in all and any such Improvement Suggestions to us effective as soon as you provide each Improvement Suggestion to us or upload or post an Improvement Suggestion to our Platform. The assignment pursuant to this clause 5 includes an assignment of future copyright pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity.
    • You irrevocably consent to the infringement by us and any third party we authorise, of all Moral Rights that you may have in any Improvement Suggestions.
    • If you are a User, you will be deemed to have warranted that you have obtained all consents, permissions, licenses, rights and authorisations (including any Intellectual Property Rights), necessary for us to use, host, transmit, store and disclose any User Data that you upload and/or transmit via our Platform in order for us to operate our Platform.
    • You hereby grant us and our affiliates and any applicable third party, a worldwide, non-exclusive, royalty-free, transferrable, irrevocable and assignable right and licence to reproduce, distribute, adapt and publicly perform and display and otherwise use and modify your User Data that you upload or transmit through our Platform, in order for us to operate our Platform and for the purposes set out in our Privacy Policy.
    • We have no obligation to monitor, review or verify the accuracy of any User Data and disclaim all liability with respect to any claims, actions, damages, costs and expenses, (including legal fees and disbursements), due to or arising in connection with your use of any User Data.
    • We do not represent, recommend or endorse any User Data uploaded and/or websites owned by a third party to which we have linked from our Platform via hyperlink or otherwise.

 

14. Responsibility for other Users

    • We do not accept responsibility for the conduct of any Users of our Platform.
    • If you believe that another User of our Platform has breached these Terms of Use please contact us at monica@muzikboxx.com.
    • We are not a party to any transaction for the supply of goods or services advertised by any User of our Platform. Any Tutoring Services provided via our Platform are pursuant to a contract between the relevant Teacher and Student. We are not a party to that contract.
    • Before entering into any transaction with any other User of our Platform, you should carefully consider the applicable terms and conditions applicable to the transaction, obtain all appropriate advice and take all appropriate precautions.
    • Any dispute you have with another User, is between you and the other User. You hereby release us from any claims that you may otherwise have against us in relation to any conduct of any User, any promotional, tutoring and marketing practices of any User, Tutoring Services and/or User Data.

 

15. Responsibility for third party claims

    • You hereby release us from and indemnify us in respect of any loss and damage associated with any claims and/or complaints made by any third party where the claim is caused directly or indirectly by your use of our Platform and/or use or supply of any User Data, your breach of these Terms of Use, our Teacher Verification Process, your provision of any Tutoring Services (if you are a Teacher); and/or any act or omission of any other User.

 

16. Liability

    • Except in respect of any Non-Excludable Guarantees, we do not represent that any information made available on our Platform is accurate, correct, up-to-date or error free.
    • The information on our Platform is not professional advice.
    • To the extent possible by law, we are not liable to you for any indirect, special or consequential loss or damage incurred by you, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
    • Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law (and if permitted by law), we will not have any liability to you for any loss or damage howsoever incurred in relation to your use of or inability to use our Platform and your MuzikBoxx Account.
    • Any services supplied by us through our Platform and/or your MuzikBoxx Account (which for the avoidance of doubt, includes the services supplied by us, but does not include services supplied by any User of our Platform to any person) may come with implied Non-Excludable Guarantees which are regulated by the ACL. The extent of the implied guarantees depends on whether you are a ‘consumer’ of services within the meaning of that term pursuant to the ACL as amended. Where you are a ‘consumer’ for the purposes of the ACL, we are required to provide and shall be deemed to have provided the following mandatory statement to you: “Our goods come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
    • If the services supplied by us to you through our Platform and/or your MuzikBoxx Account (which for the avoidance of doubt, does not include Tutoring Services) are supplied to you in your capacity as a ‘consumer’ of services within the meaning of that term in the ACL as amended you will have the benefit of certain Non-Excludable Guarantees in respect of those services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the services are subject to a non-excludable guarantee implied by the ACL and the services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the ACL, we limit our liability for breach of any such non-excludable guarantee implied by the ACL (other than a guarantee implied by sections 51, 52 or 53 of the ACL) or expressly given by us to you, in respect of each of the services, where it is fair and reasonable to do so, at our option, to one or more of the following if the breach relates to services:
      • the supplying of the services again; or
      • the payment of the cost of having the services supplied again.
    • Any warranty against defects provided by us to you in your capacity as a ‘consumer’ under the ACL is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
    • Except in respect of any Non-Excludable Guarantees, all conditions, warranties and guarantees implied in these Terms of Use are excluded, to the extent possible by law.

 

17. Termination

    • We reserve the right to at any time suspend and/or terminate these Terms of Use, your access to our Platform and/or your User account or any part of it, without providing you with notice. We may suspend and/or terminate these Terms of Use and your access to our Platform and/or your User Account or any part of them at any time without notice.
    • We may take down our Platform or any part of it or take our Platform or any part of it offline at any time without notice for maintenance purposes or where otherwise reasonably necessary to protect our legitimate commercial interests.
    • Termination of these Terms of Use and access to our Platform does not affect any accrued rights of either party.
    • If we terminate your access to our Platform, your MuzikBoxx Account will subsequently terminate and you will have no further right to use our Platform.
    • If we discover that a Teacher has provided a Student with Tutoring Services independently of our Platform, we reserve the right to terminate both that Student’s and Teacher’s MuzikBoxx Account, in our sole discretion.
    • If we terminate these terminate these Terms of Use, your access to our Platform and/or your User account or any part of it, for any reason, other than due to your breach of these Terms of Use, and you have paid an amount to us in advance for your subscription to our Platform for a particular calendar month that has not yet expired, we will provide you with a pro rata refund for that calendar month having regard to the effective date of termination.
    • If we terminate these terminate these Terms of Use, your access to our Platform and/or your User account or any part of it due to your breach of these Terms of Use, you will not be entitled to any refund of any amount paid to us in advance for your subscription to our Platform for a particular calendar month that has not yet expired.

 

18. App Specific Provisions

    • The provisions of this clause 18 apply only to your use of our Platform accessed using a smartphone application that you download from the Apple App Store or Google Play (each, an app).
    • You agree that this Terms of Use is an agreement between you and us and not between you and Apple, or you and Google. As between us and Apple Inc., and as between us and Google Inc., we are solely responsible for any product warranties pertaining to the app, whether express or implied by law, to the extent not otherwise effectively disclaimed under these Terms of Use and Apple and Google will have no other warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty (if any) will be our sole responsibility.
    • You and we each acknowledge that, subject to clause 8, as between you and us, we, and not Apple or Google, are responsible for addressing any of your claims relating to the app or your possession and/or operation of the app, including, but not limited to: (i) product liability claims made in respect of the app; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.
    • In the event of any failure of the app to conform to any applicable warranty and where the warranty relates to your use of a version of the app downloaded through the Apple App Store you may notify Apple, and Apple will refund the purchase price for the app to you (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty will be our sole responsibility.
    • For the avoidance of doubt, you agree:
      • to release and indemnify us from any claims that you or any other person might otherwise have (including any claims arising under consumer protection or similar legislation in respect of the app and any other claims, losses, liabilities, damages or expenses) which relate to your acts or omissions;
      • you, and not us, will be solely responsible for any of the matters referred to in clauses 2, 18.3, 18.4 to the extent they are caused or contributed to by you.
    • We and you each acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance or support services with respect to the app.
    • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
    • We and you each acknowledge and agree that Apple and Google, and Apple’s and Google’s respective subsidiaries, are third party beneficiaries of these Terms of Use, and that Apple and Google will each have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary of these Terms of Use.

 

19. Notices

    • Any notice issued to you from us or from us to you shall be in writing and sent by email only. Where sent from us to you, we shall use any of your contact details that are included in your MuzikBoxx Account.
    • You may contact us or send a notice to us using our contact details that are specified on our website at muzikboxx.com by sending an email to us at admin@muzikboxx.com or by writing to us at PO Box 266 ENFIELD NSW 2136, AUSTRALIA.
    • Any notice issued by hand shall be deemed delivered upon delivery.
    • Any notice issued by post shall be deemed delivered six (6) Business Days after posting if posted domestically, or twenty (20) Business Days after posting if posted internationally.
    • Any notice issued via email shall be deemed to be delivered upon receipt by the sender of an electronic read receipt or delivery receipt, or upon receipt of confirmation from the recipient that the recipient received the email.
    • We may send you email or other electronic messages concerning our Platform from time to time.

 

20. General

    • Other rights: All rights not expressly granted to us in these Terms of Use are expressly reserved by us.
    • Amendment: These Terms of Use may be amended by us at any time on 30 days’ notice. You may not amend them.
    • Assignment: You may not assign, transfer, license or novate your rights or obligations under these Terms of Use without our prior written consent. We may assign, transfer, license or novate our rights or obligations under these Terms of Use at any time.
    • Severability: If any part of these Terms of Use is deemed invalid by a court of competent jurisdiction, the remainder of these Terms of Use shall remain enforceable.
    • Relationship: You and us are independent contracting entities and these Terms of Use do not create any relationship of partnership, joint venture, fiduciary, or employer and employee or otherwise.
    • Entire Agreement: These Terms of Use constitutes the entire agreement between you and us with respect to its subject matter and to the extent possible by law, supersedes all prior understandings, representations, arrangements and agreements between you and us regarding its subject matter.
    • Jurisdiction: These Terms of Use shall be governed and construed in accordance with the law in force in New South Wales. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and any court of appeal therefrom with respect to any dispute concerning these Terms of Use or any action taken by a party to enforce these Terms of Use.

 

21. Dictionary and Interpretation provisions

Definitions

In these Terms of Use, capitalised words in bold font in the body of this document have the meanings given thereto as set out in the applicable clauses in which they are defined. In addition, the following words have the following meanings, unless expressly agreed otherwise:

ACL means schedule 2 to the Competition and Consumer Act 2010 (Cth).

Booking means a Lesson that has been paid for further to a Booking Request made by a Student that is accepted by a Teacher.

Booking Request means a request that a Student has submitted via their Student Account to a Teacher for Tutoring Services.

Business Day means Monday – Friday excluding public holidays in New South Wales.

Business Hours means 9:00am – 5:00pm on Business Days.

GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Guardian means a legal guardian, parent or a person having parental responsibility under any applicable jurisdiction of the Minor and/or a person who has been nominated in writing to us by the relevant individual while they were capable of giving consent.

Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.

Lesson means a music lesson carried out by a Teacher, pursuant to a Booking.

Minor means any Student or person who applies for a Student Account who is under the age of fifteen (15).

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Non-Excludable Guarantee means a non-excludable guarantee implied into these Terms of Use by the ACL.

User means a Student or Teacher who has a MuzikBoxx Account on our Platform.

Terms of Use means the terms and conditions set out on this webpage.

Tutoring Services means tutoring services provided in a Lesson by Teachers to Students.

Teacher Verification Process means a process in which we will attempt to verify the credentials and qualifications of a Teacher before activating their Teacher Account.

User Data means any data uploaded, downloaded or transmitted by a User via our Platform.

we, our and us means MuzikBoxx Pty Ltd ABN 23 638 270 176 of PO Box 266 ENFIELD NSW 2136.

 

Interpretation

In these Terms of Use:

  • Headings and underlinings are for convenience only and do not affect the construction of these Terms of Use.
  • A provision of these Terms of Use will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
  • Currency or “$” refers to Australian dollars unless specified otherwise.
  • A reference to time is to time in New South Wales, Australia.
  • A reference to a statute or regulation includes amendments thereto.
  • A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of these Terms of Use.
  • A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
  • A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
  • The words “includes”, “including” and similar expressions are not words of limitation.