Revision: 1
Date: 5 October 2010

In these terms of use "Embark", "We", "Us" or "Our" refers to embark and “You” and “Your” refers to you.

Important: The Embark Wiki is a public, collaborative, community sourced, information website where content is contributed by, and is the opinion of, each respective contributor. Embark does not endorse, nor does it make any representation about the accuracy or suitability of, any content. You should make Your own independent investigations (and seek professional advice) before implementing any conclusion You reach from accessing this website. All rights are the property of their respective owners. Text contained in the Embark Wiki is available under the Creative Commons Attribution-ShareAlike 3.0 Australia License, unless otherwise marked.

The Embark Wiki is only made available to You by Embark on the terms of use described below (“Terms”). These Terms constitute a legal agreement between You and Embark and Your use of the Embark Wiki constitutes Your agreement to the Terms.

If You do not agree to be bound by the Terms then You must not use the Embark Wiki.

1. Documents included in the Terms

1.1 The Terms are made up exclusively of:

(a) the terms of use described in this document;

(b) the Website Disclaimer;

(d) the Acceptable Use Policy; and

(e) the Privacy Policy.

Any inconsistency between any of those documents will be resolved in favour of the document that appears first in the above list, except to the extent that a document that appears later in the list is stated to expressly override a document that appears earlier in the list.

1.2 Except as expressly stated in one of the documents listed in clause 1.1, no other terms or conditions are incorporated into the Terms. The documents listed in clause 1.1 supersede all prior arrangements (whether written or oral) in relation to their subject matter.

2. Changes to the Terms

2.1 We may change the Terms by giving You notice of the change.

2.2 The period of notice required to be given depends on the nature of the change. If:

(a) the change will benefit You or have a neutral impact on You, We may make the change without giving You advance notice;

(b) the change is required to comply with any law or lawful requirement of any regulatory body, to preserve or safeguard the security, performance or integrity of any network or system We use or to maintain any accreditation or recognition We have, We will give You a reasonable period of notice not exceeding 3 days; and

(c) for all other changes, We will give You at least 30 days' notice prior to the change taking effect.
Where notice is required to be given We will provide such notice by posting a new version of these Terms on the Embark Wiki.

3. The Embark Wiki

3.1 You acknowledge and agree that the object of the Embark Wiki is to make available public, collaborative, community sourced, information and accordingly Your contribution may be displayed publicly, edited or deleted by other any other Contributor or Moderator at any stage.

3.2 You acknowledge and agree that the Embark Wiki is subject to limitations, which are explained on the website, which You agree and represent to Us that You have read and understood. For example, the Website Disclaimer.

3.3 You agree to:

(a) only use the Embark Wiki for Your own personal or internal company purposes and for posting relevant information on the topics covered in the Embark Wiki;

(b) not use the Embark Wiki in a way that is contrary to the Acceptable Use Policy;

(c) comply with all laws, regulations and legal requirements;

(d) not do or omit to do anything which, in the opinion of Embark:

(i)  brings Embark into disrepute;

(ii) impacts negatively on Embark’s reputation or standing in the community; or

(iii) impedes or makes more difficult the achievement of Embark’s objectives,
including illegal activity or infringement of any third party rights.

(e) only use the Embark Wiki in accordance with any documentation or written instructions provided to You by Embark;

(f) advertising for products or services which is not clearly marked as such; and

(g) not use the Embark Wiki for the purposes of any spam, search engine optimisation, back-linking, referral, hacking or other similar activities.

3.4 Embark may, but has no obligation to:

(a) Monitor, edit or delete any content in the Embark Wiki;

(b) Limit or remove access to all or any part of the Embark Wiki at any time for all or some Users;

(c) Delete User profiles and any and all contributions by Contributors and Moderators.

4. Users, Contributors and Moderators

4.1 “Users” may access the Embark Wiki. We grant to Users a personal, non-exclusive, revocable licence to access the Embark Wiki for the limited purpose of viewing the content and posting (moderated) comments on the articles.

4.2 “Contributors” are Users who can also create and submit new articles for publication and suggest edits to existing articles for republication in the Embark Wiki. In addition to other rights We have granted to You, We grant to Contributors a personal, non-exclusive, revocable licence to access the Embark Wiki for the limited purpose of creating and submitting articles for publication and suggesting edits to existing articles for republication.

4.3 “Moderators” are Contributors who can edit articles and approve articles for publication and republication. In addition to other rights We have granted to You, We grant to Moderators a personal, non-exclusive, revocable licence to access the Embark Wiki for the limited purpose of editing articles and approving articles for publication.

5. Intellectual Property

5.1 You acknowledge that the content of the Embark Wiki is protected by intellectual property rights, some of which are licenced to You by Embark and some which are licensed by the relevant Contributor.

5.2 The text of the Embark Wiki articles is made available on the terms of the Creative Commons Attribution ShareAlike 3.0 Australia licence, located at http://creativecommons.org/licenses/by-sa/3.0/au/legalcode

5.3 For the purposes of the above and to further the objectives of Embark, for all intellectual property rights in connection with any contributions You make to the Embark Wiki You agree to make such contributions available to users of the Embark Wiki on the terms of the Creative Commons Attribution ShareAlike 3.0 Australia licence, located at http://creativecommons.org/licenses/by-sa/3.0/au/legalcode

5.4 For the purposes of attribution, You agree that attribution by Embark may take the form of a hyperlink from the relevant article on the Embark Wiki containing Your contribution to Your Contributor or Moderator profile on the Embark Wiki.

5.5 You warranty that none of the contributions You make to the Embark Wiki infringe the rights of any third party, including the use of those contributions as contemplated by the Embark Wiki or described in this document.

5.6 You consent to Embark doing any act which, but for this consent, would otherwise infringe Your moral rights.

5.7 You release and indemnify Us and Our officers, agents, employees and contractors from and against any and all Liabilities arising in connection with a breach of this clause 5.

6. Your Username and Password

6.1 We may allocate to You a username and password (or other such access codes) (referred to collectively as "Login Details") for the purpose of gaining access to certain areas and functions within the Embark Wiki. Embark may from time to time require that You validate Your identity using Your Login Details.

6.2 You must keep all Login Details secure and confidential at all times and must not disclose them to anyone else. If You have reason to believe that this clause has been breached or that a third party has obtained unauthorised access to Your Login Details, You must notify Us immediately.

6.3 You agree that We cannot and do not know whether You have given Your Login Details to other people (whether knowingly or not, and whether directly or indirectly). You therefore agree that You are totally responsible for all actions of the people (if any) to whom You provide Your Login Details (whether knowingly or not, and whether directly or indirectly) while they obtain access the Embark Wiki using those Login Details, and that We are entitled to treat instructions provided by those people through such access as instructions originating from You.

6.4 You release and indemnify Us and Our officers, agents, employees and contractors from and against any and all Liabilities arising in connection with a failure by You to comply with this clause 6, or any use of the Embark Wiki by a person not authorised by You or Us (if that person gained access to those systems by means of Your Login Details, other than because of any breach of contract, negligence or other wrongful act or omission by Us).

7. Your Obligations

7.1 You must provide Us with such co-operation and support as We reasonably request, including by:

(a) ensuring that all information You provide to Us is kept accurate and up-to-date, including by providing updates to Us as soon as practicable after any information changes; and

(b) responding promptly to Our communications in relation to the Embark Wiki.

7.2 We will contact You only by email. You are solely responsible for receipt of correspondence sent to You. We are not responsible for Your failure to receive correspondence sent to You due to any security or anti-spam system or any problems with Your email system or the Internet more generally.

7.3 You must only use the Embark Wiki in accordance with all applicable Laws and must ensure that all information, directions and requests provided by You to Us in relation to the Embark Wiki complies with all applicable Laws. You must not use the Embark Wiki for the purpose of conducting or promoting any activities which are in breach of any applicable Laws or any rights of any third party.

7.4 You must ensure that any data or electronic files exchanged between You and Us does not contain any computer viruses or other forms of software designed to damage or disable any person's computer systems or to corrupt or destroy any person's data, or permit a person to gain unauthorised access to any person's computer systems ("Malware"). If You have reason to believe that You have received from Us or transmitted to Us any Malware, You must notify Us of that fact immediately.

7.5 The Embark Wiki is constantly changing and is not a storage service and should not be relied upon as such. If You would like to maintain a record of Your contribution at any particular time or in any particular state, it is Your responsibility to do so.

8. Termination

8.1 These Terms commence on the date on which You first access the Embark Wiki.

8.2 We may terminate the Terms (including Your access to the Embark Wiki):

(a) immediately if You commit a breach of Your obligations under the Terms; or

(b) for any other reason by giving You 30 days' prior written notice.

9. Confidentiality and Intellectual Property

9.1 You agree to keep all correspondence between Us confidential and not disclose it to any third person for any reason.

9.2 The restrictions contained in clause 9.1 do not apply to:

(a) any Confidential Information which enters the public domain other than as a result of any breach of confidentiality;

(b) the disclosure of any Confidential Information to the extent required by a court of competent jurisdiction, governmental body or applicable regulatory authority under law, provided that You use reasonable endeavours to give Us as much prior notice of such disclosure as is reasonably practicable; or

(c) Your use or disclosure of Confidential Information in accordance with rights lawfully granted to You by a third party.

9.3 Nothing in these Terms transfers to You any IPR owned by Embark. All IPR in anything Embark produces in connection with the Embark Wiki are and will remain owned by Embark.

9.4 You release and indemnify Embark and its officers, agents, employees and contractors from and against any and all Liabilities arising in connection with a failure by You to comply with this clause 10.

10. Warranties

10.1 Subject to clause 10.5, Embark makes no warranties, express or implied, in connection with the Embark Wiki or the content on the Embark Wiki. You acknowledge that neither Embark nor any person acting on Embark’s behalf has made any representation or warranty regarding the Embark Wiki (including as to the quality or suitability for any purpose, or whether the performance or possession or use of such things will infringe the rights of any person, or whether the Embark Wiki will operate uninterrupted or error free), which is not recorded expressly in these Terms.

10.2 Without limiting clause 10.1, the Embark Wiki is provided AS IS and AS AVAILABLE.

10.3 Without limiting other representations and warranties made by You, You warrant that:

(a) You are authorised to enter into these Terms;

(b) the information You provide to Us is complete, true and correct in all respects; and

(c) You have not and will not rely on any information in the Embark Wiki.

10.4 You agree that Embark may perform maintenance in respect of the Embark Wiki to ensure its satisfactory operation, which maintenance may affect the availability or functioning of the Embark Wiki.

10.5 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise into these Terms, are expressly excluded to the maximum extent permitted by law. Where legislation implies into these Terms any term or warranty that cannot lawfully be excluded, that term or warranty is included but Our liability in respect of a breach of that term or warranty is, at Embark’s option, limited to any one or more of the following:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of such goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) if the breach relates to services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

11. Liability and indemnification

11.1 To the maximum extent permitted by applicable law, Embark is not liable for any direct, indirect, consequential, special, punitive or exemplary losses or damages of any kind (including, without limitation, loss of use, loss of profit, loss of corruption of data, business interruption or indirect costs) suffered by You arising from, as a result of, or otherwise in connection with, any act or omission whatsoever of Us, Our Affiliates and each of their respective directors, officers, employees, agents or contractors.

11.2 You must indemnify, keep indemnified and hold Embark and each of its respective directors, officers, employees, agents or contractors harmless for all and any claims arising from, as a result of, or otherwise in connection with, the Embark Wiki and Your use of the result of the Embark Wiki.

11.3 The limitations and exclusions in this clause 12 apply to any, loss, damage or claim whether based in contract (including under any indemnity or for breach of any warranty), tort (including negligence), under statute or any other legal basis.

12. General

(a) We may provide notice to You by email to the contact email address You provided Us.

(b) You may not assign Your rights or obligations under these Terms. We may novate these Terms to any of Our Affiliates and You must execute such reasonable documents prepared by Us as necessary to effect such a novation. We are free to sub-contract any of Our obligations under the Terms.

(c) We are acting in the capacity of independent contractor. These Terms do not constitute any partnership, trust, agency, joint venture or employment relationship between the parties.

(d) Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Terms and the transactions contemplated by it.

(e) These Terms are governed by the laws of Victoria, Australia. Each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning the Terms and waives any right it may otherwise have to claim that those courts are an inconvenient forum for the resolution of disputes.

(f) Nothing in these Terms is to be interpreted against a party solely on the ground that the party put forward the Terms or a relevant part of it.

13. Glossary of Terms

13.1 In these Terms of Use, unless the context requires otherwise:
"Affiliate" in relation to a party means any entity that controls or is controlled by or is controlled in common with that party, and includes any 'related body corporate' (as defined in the Corporations Act 2001 (Cth) of that party. For these purposes, an entity is taken to be 'controlled' by a party if that party owns the majority of share capital or other securities in the other entity to which a right to vote in a general meeting of the entity attaches, or if the management of the entity is controlled by that party.
"Confidential Information" means all information of or pertaining to Us which has been in the past or is in the future supplied or disclosed to You or which otherwise comes to Your knowledge in connection with the Embark Wiki, including without limitation:

(a) information concerning the business affairs, business partners, suppliers, plans or strategies of Us or any of Our Affiliates;

(b) information concerning any products or services which We propose to supply; and

(c) information which is designated by Us as being confidential or which a reasonable person would, given the nature of the information, consider to be confidential.

"IPR" means all rights in relation to copyright, trade secrets, trademarks, designs, drawings, patents, know-how, secret processes, formulae, semiconductor or circuit layouts and all other similar proprietary rights and all rights to the registration of those rights, whether created, formed or arising at any time, in Australia or elsewhere.

"Liability" includes any loss, damage, cost, expense (including the full amount of any legal expenses) and other liability whatsoever, whether prospective or contingent, and whether ascertainable or not.

"Tax" includes any tax, levy, impost, deduction, charge, rate, duty, or withholding that is levied or imposed by a governmental agency, and any related interest, penalty, charge, fee or other amount.

13.2 The following rules of interpretation apply in the Term of Use:

(a) the singular includes the plural;

(b) a reference to a person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

(c) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time;

(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(e) examples are descriptive only and mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;

(f) a provision must not be construed against a party merely because that party was responsible for preparing that provision;

(g) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;

(h) any reference in the calculation of consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a party, must include any tax payable on such indemnity, reimbursement or similar amount by the person being indemnified or reimbursed;

(i) if the doing of any act, matter or thing under the Terms of Use is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion.