eLearning Terms & Conditions
Definitions
1. In these Terms & Conditions, the following terms have the corresponding meaning (unless the context otherwise provides):
Agreement is defined as the signed Cover Agreement pursuant to these Terms & Conditions
Agreed Fees means the agreed fees for the services provided by the Provider under the Agreement
Associates means a party’s officers, employees, agents and any other associated entity
Business Hours means 9am-5pm Monday to Friday (excluding public holidays)
Client defined as Company Name on the Agreement
Client’s Copyright means all existing and future course materials, literary works, interactive presentations and video clips, in which copyright exists and which are made or created by the client, either solely or jointly with any other person, in connection with and whether created before or after the date of the Agreement
Client IP means any and all Intellectual Property Rights owned by the client in existence prior to the date of the Agreement, was owned by the client prior to the date of the Agreement, is used by the client with the proprietary interest in the intellectual property in performing its obligation under the Agreement
Confidential Information means
- Information (whether verbal or in writing), material and data disclosed by or on behalf of either party or of which they become aware of, during the duration of the Agreement;
- Information acquired by either party in the course of discussions prior to the date of the Agreement;
- Any information, material and data designated as confidential by either party from time to time;
- Any other information, material and data which by its nature should reasonably be considered to be confidential;
- The terms and conditions of the Agreement; or
- Information marked as commercial in confidence, confidential, and which may be provided in writing, electronically, verbally or otherwise, however excludes any information which is in the public domain other than through a breach of a confidential obligation, or which was known by the other party at the time of disclosure.
Copyright Act means the Copyright Act 1968 (Cth)
Intellectual Property Rights means
- All intellectual rights, protected by statute or common law in Australia or elsewhere in the world, including copyright, trademarks (registered or unregistered), designs (registered or unregistered), patents, know-how, trade names, Confidential Information, circuit layouts but excluding Moral Rights;
- Any application or right to apply for registration of any rights in connection with any intellectual property rights referred to in a); and
- Licences and other rights to possess and use the works and other subject matter of intellectual property rights and trading names
LMS defined as Learning Management System
Loss includes, in each case whether of a direct, indirect or consequential nature:
- Any liability, damage, cost (including reasonable legal costs) and other outgoing, and any diminution in value of, or deficiency of any kind in anything; and
- To the extent not covered in a), any loss of profit, sales, turnover, reputation (or damage to it), production, anticipated savings, goodwill, business opportunities, customers, software or data, or loss of use of any software or data, and loss under, or in relation to any other agreement
Moral Rights means the right of an individual who is the author of a work in which copyright exists to have the work attributed to him or her and not to have authorship falsely attributed and a right of integrity of authorship as defined in s189 of the Copyright Act
Provider defined as Allara Global
Provider Copyright means all existing and future course materials, literary works, interactive presentations and video clips, in which copyright exists and which are made or created by the Provider, either solely or jointly with any other person, in connection with and whether created before or after the date of the Agreement
Provider IP means any and all Intellectual Property Rights owned by the client in existence prior to the date of the Agreement, was owned by the Provider prior to the date of the Agreement, is used by the client with the proprietary interest in the intellectual property in performing its obligation under the Agreement
Term means the term of the Agreement as set out in clause 2
2. Terms of the Agreement
2.1. The Agreement is for an initial period as documented within the Cover Agreement. At the end of the initial period or any extension period, the Agreement will continue and be extended by a further 12 months (“extension period”), unless terminated in accordance with the provisions of Clause 2.2 and 2.3
2.2. If the Agreement is terminated within the initial period, the Client will liable for all fees payable until the end of the initial period
2.3. The Agreement may be terminated within the extension period by giving 30 days notice in writing
2.4. Termination of the Agreement is without prejudice to either party’s rights accrued or obligations incurred prior to the effective termination
2.5. Either party may terminate the Agreement immediately by written notice of termination in the event of serious misconduct or gross negligence on either part where:
- Either party breaches or fails to carry out any of the obligations or duties under the Agreement and in the case of a breach which is capable of remedy, fails to remedy the breach within 21 days after receipt of written notice giving full particulars of the breach and requiring it to be remedied;
- Either party breaches or fails to carry out any of its obligations and responsibilities under the Agreement and the breach or failure is not capable of remedy;
- Either party becomes bankrupt, or a receiver or a receiver and manager or administrator or other controller is appointed to all or any part of the assets or undertaking of a party;
- Either party enters into a scheme of arrangement with its creditors or any class of them or indicates its intensions to do so;
- Either party suspends payment of its debts or is unable to pay its debts when they are due, or if so becomes unable to pay its debts within the meaning of the Corporations Act;
- A provisional liquidator is appointed to the other party;
- An application or order is made for the winding up or dissolution of a party or a resolution for the winding up or dissolution of a party, except for the purpose of amalgamation or reconstruction which has the other party’s prior written consent; or
- Either party ceases or threatens to cease to carry on business
2.6. Failure or delay in performance of any obligation (other than relating to the payment of Agreed Fees) under the Agreement by either party will not be deemed to be a breach of the Agreement if that failure or delay is due to any cause beyond the reasonable control and without the fault or negligence of that party, but in order to excuse its default on this basis, a party will notify the other of the occurrence of the cause, specifying the nature, particulars and expected duration thereof
3. Third Party Content
3.1. The Client may request and provide Third Party Content to be imported into the LMS. The Provider is not responsible for any Third-Party Content imported in to the LMS and does not guarantee that the content will function error free or for the Client’s intended purposes, and no representations or warranties regarding the same are made by the Provider
4. Delivery of eLearning
4.1. The Provider agrees to deliver the agreed suite of eLearning to each enrolled staff member through the dedicated online portal through http://www.ttg.education/lms/
4.2. The Provider agrees to issue the Client with tax invoices at regular monthly intervals with respect to the Agreed Fees accrued and due for payment according to the Fee Instalment Method applicable
4.3. The Client agrees to pay the Agreed Fees within 28 days of receipt of a tax invoice issued by the Provider
4.4. Clients who are on the Unlimited Course Subscription are entitled to access any new courses or content as released by the Provider
4.5. Where the Provider has updated courses to reflect changes in legislation and regulation, no additional cost will be incurred by the Client
5. Additional Services and Support
5.1 Technical LMS support is provided by Allara Global, however, any additional course building or requests will be charged at a rate of $150 per hour
5.2 A scope of works will be developed with the Client and quote provided before any additional services are undertaken
6. Copyright and Intellectual Property
6.1. The Provider acknowledges and agrees that the Client owns and retains the Client’s IP which includes the Client’s IP, the Client’s trademarks, the Client’s research data, the Client’s improvements to processes/procedures, training materials or other training delivered by the Client and any other services provided by the Client, before, on or after the date of the Agreement
6.2. The Client acknowledges and agrees that the Provider owns and retains the Provider’s IP which includes the Provider’s IP, the Provider’s trademarks, the Provider’s research data, the Provider’s improvements to processes/procedures, training materials or other training delivered by the Provider and any other services provided by the Provider, before, on or after the date of the Agreement
6.3. The parties agree that the provisions of clause 6.1 and 6.2 survive termination of the Agreement
6.4. The Provider acknowledges that any files or courseware provided by the client are not to be used with other clients or third-party Providers
6.5. The Client acknowledges and agrees that the Provider may promote the Client as utilising the Provider’s services including but not limited to logos, case studies and promotional materials
7. Confidentiality
7.1. Each party must ensure that they and their respective Associates:
a) Keep confidential and not disclose to any person the Confidential Information (subject to the disclosures permitted under clause 6.2;
b) Not introduce any Confidential Information into any computer system or other device operated, controlled or which may be accessed to any extent by a person other than that party; and
c) Not copy or use the Confidential Information or permit anyone else to do these things, except to the extent necessary for performing that person’s function under the Agreement
7.2. Each party may disclose the Confidential Information:
a) With the prior written consent of the party who supplied the information (in its discretion);
b) To legal advisors, auditors and other professional consultants requiring the information for the purposes of the Agreement;
c) If strictly and necessarily required in connection with legal proceedings relating to the Agreement; or
d) As required by law
8. GST
8.1. If GST is payable on any supply under the Agreement, the fee payable for the supply will be considered exclusive of GST. Unless the parties otherwise agree in writing, the party receiving the supply undertakes to pay the supplying party the amount of such GST in addition to any fee for that supply of the time the fee is payable or at such later time when the amount of GST becomes known, subject to the supplying party issuing a valid tax invoice to the party receiving the supply in accordance with the relevant GST legislation
8.2. “GST” means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes any amendments from time to time
9. Liability
9.1. The law implies various conditions and warranties that might apply to the Agreement. All such conditions and warranties are excluded to the fullest extent permitted by law
9.2. To the extent permitted by the Competition and Consumer Act 2010, the liability of the Provider to the Client is limited to the delivery of eLearning as documented in Clause 4. The Provider will not be liable in any circumstances for loss of profits or any other consequential loss resulting from the delivery of eLearning
9.3. In no circumstances is either Party liable for any indirect or consequential loss or damage suffered by the other or any other person arising out of, in connection with or relating to the performance, breach or non-observance of the Agreement by that Party. Each Party agrees that loss of profits or loss of business opportunities, however occurring, will constitute indirect or consequential loss or damage
10. Privacy and Data Protection
10.1. The Client and the Provider each use personal information collected from the Enrolled Students to perform their obligations under the Agreement
10.2. Each party may disclose personal information to other parties to carry out its function under the Agreement and as otherwise required by law
10.3. Each party will only disclose information to other parties as required to perform their duties under the Agreement or as otherwise allowed under the Privacy Act 1988 (Cth)
10.4. In performing the services under the Agreement the Provider may receive from the Client or may have access otherwise to “personal information” of individuals as defined in the Privacy Act 1988 (Cth) with respect to Enrolled Students.
10.5. The Provider warrants and undertakes:
a) To access, obtain, record, hold, disclose, use, alter, delete, erase, destroy and carry out any other operation(s) on the Data (“Process”) only in accordance with the Client’s lawful instructions and for the purpose of carrying out the services under the Agreement, and not for any other (commercial) purposes;
b) That in processing the Data it shall do so in accordance with all applicable statute, regulation or law, in particular the Privacy Act 1988 (Cth), the National Privacy Principles contained in Schedule 3 to the Privacy Act or any approved privacy code (as defined by the Privacy Act), that applies to the Provider, the Client or both; and
c) Take appropriate and commercially reasonable technical and organisational measures to prevent the unauthorised or unlawful processing of the Data or such other measures reasonably specified by the Client
11. Authority
11.1. Each party warrants that it has the authority, power and capability to enter into and perform its obligations under the Agreement and that its obligations under the Agreement are enforceable by law
12. Governing Law
12.1. The Agreement is governed by the laws of New South Wales
12.2. Each party irrevocably submits to the jurisdiction of the courts of New South Wales
13. Counterparts
13.1. The Agreement may be signed or executed in a number of counterparts, with the same effect as if the signatures to or execution of each counterpart, were on the same instrument
14. Severance
14.1. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in the Agreement
15. Entire Agreement
15.1. The Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties
16. Variation
16.1. A variation of the Agreement must be signed by the parties
17. Waiver
17.1. No right under the Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right
17.2. A waiver by one party under clause 17.1 does not prejudice its rights in respect of any subsequent breach of the Agreement by the other party
17.3. A party does not waive its rights under the Agreement because it grants an extension or forbearance to the other party
18. No Partnership
18.1. Nothing in the Agreement operates or is deemed to create a partnership between the parties to the Agreement and any such intention is expressly negatived
19. Notices
19.1. All notices provided in connection with the Agreement must be in writing and sent to the address or postal address of the recipient set out on page one of the Agreement or such other address as the recipient may designate by notice given in accordance with this clause
20. Assignment
20.1. A party may not assign any of its rights under the Agreement except with the prior written consent of the other party (in its discretion). Any assignment made without prior written consent of the other party is voidable by the other party
21. System Requirements
21.1. The Provider’s LMS will maintain a minimum service level if 90% uptime minus scheduled downtime
Scheduled downtime should not exceed a maximum of 60 consecutive minutes unless previously authorised in writing by client
21.2. The Provider shall give at least 24 hours prior notice for scheduled downtime of LMS by email or phone
21.3. The LMS requires a modern web browser (last 2 major versions) that supports cookies and JavaScript
22. Agreed Fees
22.1. Fees associated with the eLearning service are stated within the Cover Agreement
22.2. All fees are payable by the method of payment stated within the Cover Agreement
22.3. First payment instalment is payable on the due date specified within the Cover Agreement
22.4. All invoices and statements of payments to be provided to the address nominated by the client as stated within the Cover Agreement
22.5. If additional venues and/or employees wish to be added by the Client to the LMS, the appropriate pricing tier will be reviewed and a pricing amendment to the Agreement issued
23. First Access Date
23.1. The release and first access to the LMS is provided to the client on the date specified within the Cover Agreement
24. Renting Provider’s Courses on Client’s LMS
24.1. Access will be provided to the Provider’s Courses to host on the Client’s LMS for the duration defined within the Agreement. Upon termination of the Agreement, the Client agrees to remove and return the Provider’s Course files from their LMS
24.2. If the Client is found to have breached Clause 24.1, they will be liable to pay the agreed monthly fee for the associated period of time since termination
24.3. The Client will be eligible to receive any updates to courses as they are released by the Provider
25. Purchase a Non-Exclusive License
25.1. The Provider will provide course content to the Client, within 14 days, once the agreed fee within the Cover Agreement has been paid in full
25.2. The Client is not eligible to receive any updates to courses as they are released by the Provider
26. Updates to Terms
26.1. From time to time, we may update these Terms to clarify our practices or to reflect new or different practices, such as when we add new content, or for other reasons. We reserve the right in our sole discretion to modify and/or make changes to these Terms at any time. If we make any material change to these Terms, we will notify you using prominent means, such as by email notice sent to the latest email address that we have on record for you, or by posting a notice through our Services or the Website. Modifications will become effective on the day they are posted or otherwise published, unless stated otherwise
26.2. Your continued use of our services after changes become effective will mean that you accept those changes. You must visit the Website regularly to ensure that you are aware of the latest version of the Terms, as any revised Terms will supersede all previous Terms
The Agreement is subject to The Provider meeting the requirements of providing an online portal for The Client’s employees to complete the various eLearning as agreed between the two parties