Terms & Conditions
These Terms & Conditions govern Client’s access to Provider’s LMS and Provider Content. By signing the Cover Agreement, Client agrees to be bound by these Terms & Conditions and the terms and conditions of any applicable Statement of Work, and the person signing the Cover Agreement warrants that they are authorised to accept the Agreement on behalf of Client.
1. In these Terms & Conditions, the following terms have the corresponding meaning (unless the context otherwise provides):
Agreement means the signed Cover Agreement together with these Terms & Conditions and any applicable Statement of Work.
Agreed Fees means the agreed fees for the services provided by the Provider under the Agreement as set out in the Cover Agreement and any Statement of Work.
Applicable Law means all applicable statute, subordinate legislation, by-law, regulation, order, or applicable judgment of a relevant court of law.
Associates means a party’s officers, employees, agents and any other associated entities.
Business Day means any day other than a Saturday, Sunday or public holiday in Sydney, New South Wales.
Authorised User means any individual to whom Client grants authorisation to access the LMS that is an employee, agent, contractor or representative of Client.
Client means the person identified as the client in the Cover Agreement.
Client Content means all software, firmware, tools, documentation, reports, data, diagrams, plans, sound recordings and audio-visual material and any other material provided to the Provider by or on behalf of the Client, other than Third-Party Content.
Commencement Date means the date the first monthly recurring subscription invoice is raised or the date of the integration/bespoke product build invoice is raised.
Confidential Information of a party means:
- information of a confidential nature relating to or developed in connection with the business or affairs of the party which is disclosed to, or learnt by, or which otherwise comes to the knowledge of or in the possession of the other party;
- Any information, material and data designated as confidential by either party from time to time; or
- Information marked as commercial in confidence or confidential,
and which may be provided in writing, electronically, verbally or otherwise, but does not include any information which:
- is in the public domain other than through a breach of a confidential obligation;
- which was known by the other party at the time of disclosure other than as a result of a breach of confidence; or
- was independently developed by the other party without using any Confidential Information of the first party.
The Provider’s Confidential Information includes the terms and conditions of the Agreement and the Provider Content.
Copyright Act means the Copyright Act 1968 (Cth).
Courses means the education or training course made available by the Provider through the LMS.
Cover Agreement means the signed eLearning Service Agreement Form.
Data Breach has the meaning given to it in clause 10.6.
Extension Period has the meaning given to it in clause 2.1.
Future Works means, as applicable, updated versions of the Third-Party Content and Client Content.
GST has the same meaning as given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes any amendments from time to time.
Infringement Claim means, where Client is the Indemnifying Party, any claim by a third-party that the provision of the Client Content or the Third-Party Content or their enjoyment or use in accordance with this Agreement infringes the Intellectual Property Rights of that third-party.
Initial Period has the meaning given to it in clause 2.1.
Intellectual Property Rights or IPR means all intellectual property rights in, or subsisting in any of the following:
- patents, trademarks, service marks, trade names, business names, goodwill, designs, semiconductor topography rights, database rights, inventions, confidential information (including know-how or trade secrets), rights in computer software, rights in domain names and URLS, copyrights, Moral Rights and other forms of intellectual or industrial property (in each case in any part of the world, whether or not registered or registrable for their full period of registration with all extensions, renewals and revivals, and including all applications for registration or otherwise or rights to apply for or extend protection); and
- any similar or equivalent rights which may now or in the future subsist anywhere in the world.
Integration Build means the work related to the integration of the Client’s Human Resource Information System (HRIS) with the Allara Global LMS platform and other related services performed by the Provider, including those stated as such in a Statement of Work.
LMS means Provider’s online Learning Management System as made available by Provider from time to time.
Loss means any liability, penalty, fine, damage, charge, expense, payment or cost of any nature or kind (including reasonable legal costs) and other outgoing.
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.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
Provider means Allara Global Pty Limited (ACN 652 022 010).
Provider Content means any and all e-learning content, software, firmware, tools, documentation, reports, data, diagrams, plans, sound recordings and audio-visual material and any other material in whatever form provided by or on behalf of the Provider to the Client and includes allIntellectual Property Rights in this material and any updates and enhancements to this material.
Statement of Work means a statement of work agreed to in writing by the parties pursuant to this Agreement, including all schedules, exhibits and attachments thereto.
Term means the Initial Period and if applicable any Extension Period as set out in clause 2.
Third-Party Contentmeansall software, firmware, tools, documentation, reports, data, diagrams, plans, sound recordings and audio-visual material and any other material provided to the Provider by or on behalf of the Client, which is owned by a third-party.
Use means to use, copy, store, modify, adapt, translate, make available, publish, communicate to the public, exploit and otherwise deal with.
Virus means software intended to corrupt, disable, destroy or otherwise damage or interfere with the use or access of the LMS, Provider Content, Third-Party Content or Client Content whether such software is introduced wilfully or negligently and includes worms, trojan horses and other similar software.
The following rules of interpretation apply unless the context requires otherwise or expressly states otherwise:
(a) the singular includes its plural and vice versa;
(b) words denoting any gender include all genders;
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) headings are for convenience only and do not affect interpretation;
(e) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(f) a reference to a party to this Agreement includes its successors and permitted assigns;
(g) a reference to a particular day or time is to that day or time in New South Wales, Australia;
(h) a reference to any agreement (including this Agreement) or document is to the agreement or document as amended, supplemented, novated or replaced from time to time;
(i) a reference to a clause, paragraph, schedule or annexure is to a clause, paragraph, schedule or annexure in or to this Agreement;
(j) a reference to this Agreement includes any schedules and annexures to this Agreement;
(k) a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible or tangible form;
(l) a reference to dollars or $ is to Australian currency;
(m) a reference to legislation (including subordinate legislation) or a provision of it is to that legislation or provision as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(n) words such as including or for example do not limit the meaning of the words preceding them;
(o) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally; and
(p) nothing in this Agreement is to be interpreted against a party solely on the ground that the party or its advisers drafted it.
1.3 Business Days
Unless expressed to the contrary in this Agreement, if the day on or by which a party must do something under this Agreement is not a Business Day, the party must do it on or by the next Business Day.
1.4 Consents or approvals
Unless expressed to the contrary in this Agreement, if the doing of any act, matter or thing under this Agreement 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.
2.1 The Agreement commences on the Commencement Date and, unless terminated earlier, continues for the Initial term of the agreement stated in the Cover Agreement (“Initial Period”). At the end of the Initial Period or any Extension Period, the Agreement will automatically renew for one or more further periods of 12 months on the same terms and conditions including the Agreed Fees (each an “Extension Period”) unless the Agreement is terminated in accordance with clause 2.2 or clause 11.
2.2 At least 120 days prior to the expiration of the Initial Period or an Extension Period (as the case may be), the Provider will provide the Client with written notice of the upcoming renewal of the Agreement.
2.3 Either party may, at any time:
(a) during the Initial Period, upon giving at least 90 days prior written notice to the other party, terminate the Agreement with termination effective at the end of the Initial Period; and
(b) after the Initial Period, upon giving 90 days prior written notice to the other party, terminate the Agreement with termination effective at the end of the 90 day period. The end of the Agreement will be aligned with an end of month (i.e., at the end of the month which is 90 days after notice).
3. Third-Party Content
3.1 The Client may request and provide Third-Party Content and Client Content to the Provider to be imported into the LMS. To the extent not prohibited by law, the Provider is not responsible for any Third-Party Content and Client Content imported into 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 Third-Party Content and Client Content are made by the Provider.
3.2 The Client is responsible for the accuracy, quality and legality of the Third-Party Content and the Client Content, the means by which Client acquired Client Content and Third-Party Content, Client’s use of Client Content and Third-Party Content with the LMS and the interoperation of any third-party technology with which Client accesses the LMS, Client Content and Third-Party Content and Courses.
3.3 The Client must obtain and maintain all necessary licences, consents, and permissions necessary for Provider, its contractors and agents to perform their obligations and exercise their rights under this Agreement in relation to the Client Content and the Third-Party Content.
4. Delivery of eLearning
4.1 The Provider agrees to make available the Courses via the LMS during the Term to each Authorised User through the dedicated online portal https://www.allara.academy. Client must not, and must procure that its Authorised Users do not, share their LMS login credentials with any third-party or otherwise permit any person other than Authorised Users to access the LMS without Provider’s prior written consent. Each Authorised User/Client will be issued by Provider a unique password, which may not be shared to any other person or organisation.
4.2 Client undertakes that it:
(a) must only authorise or permit its employees, agents, representatives or contractors, acting on its behalf in accordance with this Agreement, to be an Authorised User; and
(b) will procure that each Authorised User complies with the terms of this Agreement.
4.3 Client must use all reasonable endeavours to prevent any unauthorised access to, or use of, the LMS and, in the event of any such unauthorised access or use, must promptly notify Provider of this.
4.4 Provider may, upon request provide technical support in accordance with Provider’s technical support policy notified to Client from time to time.
4.5 If Client requests Provider to build or create additional Courses, Provider will provide Client will a proposal in relation to this. If the proposal is agreed by the parties, Client must pay the applicable fees for the additional Courses as set out in the proposal and each party must perform all other obligations of that party set out in the proposal.
4.6 The parties may agree on further terms for a specific scope of activity in a Statement of Work. For example, a Statement of Work may set out the rights and obligations of the parties in relation to the set up or onboarding of the Client for use of the LMS. Each party must comply with the terms and conditions of each Statement of Work, including complying and completing all tasks and actions (by the due date and to the standard required, if any) that are designated as the responsibility of that party in that Statement of Work. Unless otherwise specified in a Statement of Work, each Statement of Work becomes part of this Agreement.
5. Client obligations
5.1 Client must not and must procure that its Authorised User does not:
(a) remove or modify any Provider markings or any notice of Provider’s or its licensors’ proprietary rights;
(b) make the LMS or materials resulting from it available in any manner to any third-party (unless such access is expressly permitted under this Agreement);
(c) access, store, provide, distribute or transmit any Viruses via the Client Content, Third-Party Content or the LMS;
(d) access, store, provide, distribute or transmit any inappropriate or unlawful material in the LMS and must ensure that any Client Content or Third-Party Content that it provides to Provider:
(i) is not unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(ii) does not:
- facilitate illegal activity;
- depict sexually explicit images;
- promote unlawful violence;
- discriminate based on race, gender, colour, religious belief, sexual orientation, disability or other protected class;
- otherwise cause damage or injury to any person or property; or
- breach Applicable Laws, or would cause Provider to breach Applicable Laws;
(e) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the functionality of the LMS, the Provider Content or Courses (as applicable) in any form or media or by any means;
(f) cause or permit reverse engineering (unless required by applicable law for interoperability), disassembly or de-compilation of the LMS or otherwise reduce to human-perceivable form all or any part of the functionality of the LMS;
(g) access all or any part of the LMS to perform or provide, or any person to build, a product or service which competes with the LMS or any of Provider’s other services;
(h) use the LMS to provide services, including services related to learning management systems, to third-parties;
(i) identify or attempt to identify any person or combine the information contained within the LMS with other information to identify or attempt to identify any person;
(j) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the LMS, Provider Content or Courses available to any third-party except the Authorised Users; or
(k) attempt to obtain, or assist third-parties in obtaining, access to the LMS other than as provided under this Agreement;
(l) sell, resell, license, sublicense, distribute, rent or lease any of the LMS or Content, or include any of it or them in a service bureau or outsourcing offering;
(m) disrupt the integrity or performance of any of the LMS or third-party data contained in it;
(n) attempt to gain unauthorised access to any of the LMS or Content or its related systems or networks; or
(o) infringe the rights (including Intellectual Property Rights) of any third-party in relation the Client Content, Third-Party Content or LMS.
6. Copyright and Intellectual Property
6.1 Provider acknowledges and agrees that Client owns the Client Content and Client’s trademarks.
6.2 Client hereby grants to Provider a perpetual, worldwide, non-exclusive, irrevocable and royalty-free licence to Use the Client Content and Client’s trademarks to provide the LMS and Courses to Client and otherwise perform its obligations and exercise its rights under this Agreement. Client grants Provider the full power to sub-licence or assign the rights granted under this clause to subcontractors and suppliers as Provider sees fit. Client:
(a) waives or has procured the author/s of the Client Content and Third-Party Content, to waive, and will procure the author/s of any Future Works to waive, any and all Moral Rights that they have, or may have in the future, in the Client Content and Third-Party Content and Future Works; and
(b) consents or have procured the consent of the author/s of the Client Content and Third-Party Content, and will procure the consent of the author/s of any Future Works, to all acts or omissions by Provider, Provider’s licensees or related entities, and any successors in title, which would otherwise constitute an infringement of any Moral Rights they have, or may have, in the Client Content and Third-Party Content, or Future Works.
6.3 Client must procure for Provider a licence to Use all Third-Party Content from the owner of the Third-Party Content on the same terms as the Client Content is licensed to Provider under this Agreement.
6.4 Client acknowledges and agrees that Provider owns and retains the Provider IP, Provider’s trademarks, Provider’s research data, Provider’s improvements to processes/procedures, training materials or other training delivered by Provider and any other services provided by Provider, before, on or after the date of the Agreement. Client must not download a copy of or otherwise retain, and must not provide to any third-party, any content that Provider makes available to Client via the LMS.
6.5 The parties agree that this clause 6 survives termination of the Agreement
6.6 Client acknowledges and agrees that Provider may promote Client as utilising Provider’s services including Using Client’s logos, and referring to Client in case studies and promotional materials.
6.7 Provider acknowledges and agrees that any content developed as part of an Agreement for bespoke content development for the Client, will for part of Client Content, wholly owned by Client, with the Provider having access to the content in line with Clause 6.2 above.
6.8 Any third-party content that is available on the LMS is made available in line with the commercial terms of the content rental provision/agreement with the third-party.
7.1 Each party must ensure that they and their respective Associates:
(a) keep confidential and not disclose to any person the Confidential Information of the other party (subject to the disclosures permitted under clause 7.2); and
(b) not use the Confidential Information of the other party except to the extent necessary for performing its functions under the Agreement;
(c) ensure that any person who has access to the Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with the Agreement; and
(d) enforce the confidentiality obligations required by the Agreement.
7.2 A party may disclose Confidential Information of the other party:
(a) with the prior written consent of the other party;
(b) to its legal advisors, auditors and other professional consultants requiring the information for the purposes of the Agreement;
(c) if required in connection with legal proceedings relating to the Agreement; or
(d) for the purposes of providing the LMS.
7.3 (a) Before disclosing the Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and has agreed to comply with the confidentiality obligations under the Agreement.
Subject to clause 7.3(b) each party must, at the other party’s option, return, destroy or permanently de-identify all copies of the other party’s Confidential Information in its possession or control upon request of the other party.
(b) A party may retain the Confidential Information of the other party in order to comply with law, for the purposes of litigation, internal quality assurance and record keeping or to perform its obligations or exercise its rights under the Agreement but must deal with the Confidential Information in accordance with clause 7.3 (a) promptly after it no longer requires the Confidential Information for those purposes.
7.4 In addition to other remedies, a party will be entitled to injunctive relief for any breach or threatened breach of the other party’s obligations of confidentiality under the Agreement.
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 in not chargeable on export sales (sales outside of Australia) and therefore will not be charged to clients domiciled outside of Australia. Client is wholly responsible for any applicable taxes in their country of registration.
9.1 (a) To the extent permitted by any Applicable Law, each party’s liability to the other party in connection with the Agreement (whether under statute, in contractor or in tort, including negligence, or otherwise) is limited to the total of all Agreed Fees paid by Client to Provider under the Agreement.
(b) Provider will not be liable in any circumstances for loss suffered or incurred by Client which does not arise naturally (that is, according to the usual course of things) from the event giving rise to the loss, or for any loss of profits, loss of revenue, loss of data, loss of bargain.
9.2 The limitation and exclusion of liability in clause 9.1 does not apply to a party’s liability for loss suffered or incurred by the other party in respect of:
(a) fraud or unlawful acts;
(b) death or personal injury;
(c) damage to or loss or destruction of real or personal property;
(d) breach of an obligation of confidentiality;
(e) an Infringement Claim;
(f) Loss of Provider Content; or
(g) breach of clause 5.
9.3 Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) and the Indemnified Party’s Associates (together Indemnified Persons) against all Loss suffered or incurred by the Indemnified Persons arising in connection with:
(a) fraud or unlawful acts of the Indemnifying Party or their Associates;
(b) death or personal injury caused or contributed to by any act or omission of the Indemnifying Party or its Associates;
(c) damage to or loss or destruction of real or personal property caused or contributed to by any act or omission of the Indemnifying Party or its Associates;
(d) breach of an obligation of confidentiality or privacy caused or contributed to by any act or omission of the Indemnifying Party or its Associates, except to the extent that the Loss is directly attributable to the negligence or wrongful act or omission of the Indemnified Person.
9.4 Client indemnifies the Provider and the Provider’s Associates against all Loss suffered or incurred by them arising out of or in connection with an Infringement Claim, except to the extent that the Loss is directly attributable to the negligence or wrongful act or omission of the Provider and the Provider’s Associates.
9.5 Nothing in this Agreement is intended to exclude, restrict or modify any right or remedy you may have under the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) to the extent such right or remedy cannot lawfully be excluded, restricted or modified.
9.6 No refunds are offered on the Agreed Fees other than required by law. The Provider’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, Client is entitled:
(a) to cancel the service contract with Provider; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
9.7 Client is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, Client is entitled to have the failure rectified in a reasonable time. If this is not done Client is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. Client is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
10. Privacy and Data Protection
10.1 Client must obtain all consents and authorisations from Authorised Users to permit the disclosure and use of their Personal Information by Provider in relation to the performance of this Agreement by Provider.
10.2 Each party may disclose Personal Information to other parties to carry out its obligations under the Agreement and as otherwise required by law.
10.3 Each party must:
(a) comply with all Applicable Laws including the Privacy Act 1988 (Cth) in relation to privacy and Personal Information as if it were regulated by those laws;
(b) use, access and disclose Personal Information only for the purpose of complying with its obligations under the Agreement;
(c) not disclose or permit disclosure of Personal Information except:
(i) to its employees, contractors, officers and directors to the extent necessary for the purpose of complying with its obligations under the Agreement;
(ii) as required by an Applicable Law, subject to giving notice to the other party immediately if it becomes aware that such a disclosure may be required; or
(iii) with the prior written consent of the other party;
(d) take such steps as are reasonable in the circumstances to ensure that Personal Information it collects, holds, uses or discloses is up to date, complete and relevant; and
10.4 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 client’s data only in accordance with 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 Laws; 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
10.5 In addition and in accordance with the European Union’s General Data Protection Regulation (GDRP):
(a) Provider warrants and undertakes to process personal data collected for the purpose of carrying out the services under the Agreement, in accordance with the principles set out in the GDRP;
(b) Individuals over 16-years-old can consent to the processing of personal data, but anyone younger needs the consent of their parent or guardian; and
(c) Individuals have the right to be forgotten, access their data, request their data be erased, request for the processing of their data to be restricted and request data portability.
10.6 If a party becomes aware or suspects that there has been unauthorised access to, or unauthorised disclosure of, Personal Information or Personal Information has been lost in circumstances where unauthorised access to, or unauthorised disclosure of, the Personal Information may occur (a “Data Breach”) then that party must:
(a) immediately disclose to the other party all information relevant to that actual or suspected Data Breach;
(b) co-operate with the other party in investigating whether a Data Breach has occurred and the circumstances surrounding that Data Breach; and
(c) not disclose to any third-party (including any government agency or privacy regulator) the existence or circumstances surrounding any Data Breaches unless it is required to do so by Applicable Law and the other party has given its prior approval to the contents of the notice to the third-party (such approval not to be unreasonably withheld or delayed).
11.1 A party may terminate the Agreement immediately by written notice to the other party if the other party:
(a) commits a material breach of 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;
(b) commits a material breach of the Agreement and the breach or failure is not capable of remedy;
(c) becomes bankrupt, or a receiver or a receiver/manager or administrator or other controller is appointed to all or any part of the assets or undertaking of that party;
(d) enters into a scheme or arrangement with its creditors or any class of them or indicates its intensions to do so;
(e) 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;
(f) has a provisional liquidator appointed over it;
(g) has an application or order made for its winding up or dissolution or has a resolution for the winding up or dissolution of it, except for the purposes of amalgamation or reconstruction which has the first party’s prior written consent; or
(h) ceases or threatens to cease to carry on business.
11.2 Provider may terminate the Agreement immediately with written notice to Client, if Client breaches clause 5 of the Agreement.
11.3 Termination of the Agreement is without prejudice to either party’s rights accrued prior to the effective date of termination.
11.4 On expiry or termination of this Agreement for any reason, Client must:
(a) pay Provider all amounts due and payable to Provider under the Agreement
(b) cease accessing and ensure that its Associate ceases accessing the LMS; and
(c) Provider may prevent Client and its Associate from accessing the LMS.
12.1 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.
13. Governing Law
13.1 The Agreement is governed by the laws of New South Wales, Australia.
13.2 Each party irrevocably submits to the jurisdiction of the courts of New South Wales, Australia.
14.1 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.
15.1 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in the Agreement.
16. Entire Agreement
16.1 The Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
17.1 A variation of the Agreement must be signed by the parties.
18.1 No right under the Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
18.2 A waiver by one party under clause 18.1 does not prejudice its rights in respect of any subsequent breach of the Agreement by the other party.
18.3 A party does not waive its rights under the Agreement because it grants an extension or forbearance to the other party.
19. No Partnership
19.1 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.
20.1 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.
21.1 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.
22. System Requirements
22.1 The Provider shall give at least 24 hours prior notice for scheduled downtime of LMS by email or telephone.
22.3 If the Client does not comply with the system requirements as contained in this clause 22 or any other requirement notified to the Client in writing by the Provider, then the Client acknowledges that the LMS system and any services provided by the Provider under this Agreement may not function correctly and not all of the features of the LMS may be present and they may be unable to access the Courses.
23. Agreed Fees
23.1 The Agreed Fees are stated in the Cover Agreement and each Statement of Work (as applicable) and are applicable for the maximum specified number of users provided in the Cover Agreement only.
23.2 Additional charges will apply in addition to the Agreed Fees for each user the Client exceeds the subscribed number of users provided in the Cover Agreement, at the same rate charged for each user as outlined in the Cover Agreement (total monthly subscription fee divided by the number of users provided in the Cover Agreement). Additional venues may be added at the same rate charged for each user per month, pro-rata for remaining term of agreement.
23.3 Unless otherwise stated in Cover Agreement or Statement of Work, all Integration Build services will be invoiced at 50% of the Agreed Fee upfront, before the Integration Build services commence. Payment of this upfront non-refundable deposit will be required before work on the Integration Build is undertaken.
23.4 All fees are payable by the payment method stated in the Cover Agreement.
23.5 First payment instalment for Integration Build work is payable on the due date specified within the Cover Agreement.
23.6 Invoicing for subscription to the LMS and e-learning content library, will be on the 1st or 15th of the month (as per the selection in the Cover Agreement), and will commence 30 days after the date the Cover Agreement is signed, payable in in advance. The Client is liable for fees accrued from this date, regardless of whether they are actively using the LMS or the e-learning content library, unless the reason for non-use is solely due to a delay of the Provider that prevents the Client from using the LMS and e-learning content library.
23.7 The Provider reserves the right to increase the monthly subscription fees for access to the LMS and e-learning content library annually. The Prices shall be increased each year by a percentage equal to the percentage change in the Consumer Price Index statistics published by the Australian Bureau of Statistics for All Groups Sydney. The change shall be determined by comparison of the figure for the previous 1 July with that of 1 July of the then current year. The proposed adjustment shall be calculated by Provider and provided to Client by no later than thirty (30) days after 1 July and shall apply effective immediately from such 1 July date.
23.8 Provider may increase the Agreed Fees payable at the end of the Initial Period or subsequent Extension Periods. If such an increase occurs, Provider will notify Client of these increases no less than 90 days prior to the end of the Initial Period or Extension Period by email.
23.9 All invoices and statements of payments will be provided to the electronic address nominated by Client as stated within theCover Agreement.
23.10 If additional venues and/or employees wish to be added by Client to the LMS, the appropriate pricing tier will be reviewed and a pro-rata pricing amendment to the Agreement issued.
23.11 Technical LMS support will be provided by Provider upon request. Any additional course building, Integration Build services or requests that are requested after the Commencement Date, will unless otherwise notified by the Provider be charged at a rate of $180 per hour (excl GST). An additional Statement of Work will be developed for such additional requests and must be executed by the parties before any additional services are undertaken by the Provider.
23.12 No refunds are offered on the Agreed Fees other than required by law.
23.13 The Agreed Fee schedule is unable to be paused unless an issue with accessing the Provider Content has arisen that is solely due to an issue caused by the Provider that prevents the Client from using the LMS and e-learning content library.
23.14 Should the Client wish to dispute a tax invoice issued, the Client must notify the Provider within 5 Business Days of receiving the tax invoice.
24. Payment Options & Charges
24.1 Payment may be made by Visa, MasterCard, American Express or any other major card providers. Payment may also be made by deposit to Provider’s bank. Bank details will be provided on all invoices issued to Client.
24.2 All monthly subscription fees that are equal to or less than $500 excluding administration fees (based on Client’s chargeable currency in the Cover Agreement), must be paid via a monthly direct debit cycle or for the annual subscription fee to be paid in full in advance.
24.3 Provider currently invoices in Australian Dollars (AUD) and United States Dollars (USD). For payments made in AUD by credit card, a 1.3% processing fee will be added to the sale value before payment is processed. For payments made in USD by credit card, a 2% processing fee will be added to the sale value before payment is processed.
24.4 Provider may accept direct debit arrangements from Client’s registered bank account on request. The ability to provide this service will depend on the location/region of Client’s bank. This service, where available, attracts a 1.3% processing fee in Client’s chargeable currency.
24.5 For accounts in arrears of more than 30 days, Provider reserves the right to charge a $15 late payment fee on these invoices. The late payment fee of $15 will be charged in the same currency as referenced in the Cover Agreement.
24.6 Provider reserves the right to suspend or terminate a Client account if overdue Agreed Fees are not bought up to account within 30 days of becoming overdue, without providing any notice to the Client. Provider is not liable for any losses that relate to this suspension or termination.
24.7 Provider shall issue Client with tax invoices at regular monthly intervals with respect to the Agreed Fees accrued and due for payment according to the Agreement.
24.8 Client agrees to pay the Agreed Fees within seven (7) days of receipt of a tax invoice issued by the Provider.
24.9 Clients who pay for the full e-learning content subscription are entitled to access any new courses or content as released by Provider.
24.10 Where Provider has updated courses to reflect changes in legislation and regulation, no additional cost will be incurred by Client.
25. First Access Date
25.1 The release and first access to the LMS is provided to the Client on the date specified in the Cover Agreement.
26. Renting Provider’s Courses on Client’s LMS
26.1 The Client may request a right to host the Provider Content on the Client’s own LMS. If the Provider agrees to permit the Client to host the Provider Content on the Client’s own LMS, then the Provider will make the applicable Provider Content available to the Client within 14 days of receipt of the Agreed Fees. The Client is responsible for uploading or any other activities necessary to set up and access the Provider Content in the Client’s LMS. The Client must comply with any security, copyright and usage restrictions of the Provider in relation to the Provider Content hosted by the Client. The Client, without limiting any other obligation on the Client set out in this Agreement, must host the Provider Content in a secure environment and must ensure that the Provider Content is not subject to unauthorised access, disclosure or loss (“Loss of Provider Content”). The Client must:
(a) notify the Provider immediately of any Loss of Provider Content;
(b) reasonably cooperate with Provider in relation to any Loss of Provider Content; and
(c) take all steps necessary to remedy the Loss of Provider Content.
26.2 Upon termination of the Agreement, Client will delete the Provider Content and course files from their LMS or, if the Provider elects, return the Provider Content and Course files to the Provider. If requested by the Provider a director of the Client, must certify in writing, in a form approved by the Provider, that they have deleted or returned the Provider Content and Courses and no longer have any Provider Content and Courses in their possession or control.
26.3 If Client is found to have breached clause 26.1, in addition to any other right or remedy of Provider, Client will be liable to pay the agreed monthly fee for the period of time since termination that the Client remains in possession of the Provider Content and courses.
26.4 Client will be eligible to receive any updates to the relevant Provider Content and Courses as they are released by Provider for the duration of the Term of the Agreement.
26.5 The Client indemnifies the Provider against all Loss suffered or incurred by the Provider arising out of or connection with Loss of Provider Content or a breach of this clause 26 except to the extent that the Loss is directly attributable to the negligence or wrongful act or omission of the Provider.
27. Updates to Course terms
27.1 From time to time, Provider may update the LMS to provide additional Courses and Provider Content. These additional Courses and Provider Content may have additional terms and conditions which apply to them.
27.2 If Client does not accept these additional terms and conditions the Client will not receive access to these additional Courses and Provider Content.
28. Updates to Agreement
28.1 Provider may update the terms of this Agreement. Subject to clause 28.2, Provider will provide Client with 30 days written notice of the change in the terms of this Agreement. Client may terminate this Agreement if Client can demonstrate that the change in the terms of this Agreement has at least a detrimental effect on the Client.
28.2 Provider can make urgent changes to this Agreement that are:
(a) required by law; or
(b) necessary for security reasons, to prevent fraud or for technical reasons, by giving as much notice as we reasonably can.